How Much May I Charge?

Question #1: Overcharged esrog

“My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

Question #2: Just a little bit

“Am I permitted to charge a little bit above the market price for an item?”

Question #3: Damaged coin

“I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

Question #4: Expert error

“I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

Answer:

Upon graduation from olam hazeh, the first question asked upon entering the beis din shel maalah, the Heavenly Court, is: “Did you deal honestly with your fellowmen?” (Shabbos 31a). The Aruch Hashulchan (Orach Chayim 156:3) explains that this does not mean, “Did you steal?” or “Were your weights honest?” Someone who violated these laws, whether dealing with Jewish or non-Jewish clientele, qualifies as a rosho gamur. Rather, the Heavenly Court’s inquiries are: “Did you make unjustified claims about the quality of the merchandise that you are selling?” “Did you speak to people softly in your business dealings?” “Did you curse, scream, or act angrily with people?” “Did you realize that all livelihood comes only from Hashem and act within that framework?”

Anytime is ideal to discuss the details of this topic; I chose to do so this week, since the parsha involves an obvious question as to whether Rivkah and Yaakov were permitted to deceive Yitzchok about the brochos.

In parshas Behar, the Torah teaches, Lo sonu ish es amiso (Vayikra 25:17). The word sonu has the same root as the word onaah, the name by which we call this mitzvah. The word onaah is difficult to translate into English, but for the purposes of our article, I will use the word overcharging, although, as we will soon see, onaah also includes situations of underpayment or of misrepresentation. The purpose of this article is to present the basic principles; specific questions should be referred to your own rav or dayan. Just as everyone must have an ongoing relationship with a rav for psak and hadracha, one must also have an ongoing relationship with a dayan who can answer the myriad Choshen Mishpat questions that come up daily.

Three types of onaah

There are three types of overcharging that are included in the prohibition of onaah, all of which involve taking unfair advantage:

(1) Fraud – when the item being sold contains a significant flaw that the seller conceals or otherwise misrepresents.

(2) Overpricing – when one party to the transaction is unaware of the market value of the item.

(3) No recourse – when someone is aware that he is being overcharged, but he has no recourse, because of the circumstances.

I will now explain a bit more about each of these types of onaah.

(1) Fraud

It is prohibited to hide a defect or to misrepresent an item. For example, the Mishnah (Bava Metzia 60a) and the Gemara (ibid. 60b) prohibit selling watered-down products, or painting something to hide a flaw or to make it look newer than it is (Shulchan Aruch, Choshen Mishpat 228:9). One may not add inferior material to a quality product when the purchaser will see only the quality product (Bava Metzia 59b-60a; Shulchan Aruch, Choshen Mishpat 228:10, 11).

Onaah is prohibited not only in sales, but also in other transactions, such as hiring people or contracting work (Shulchan Aruch, Choshen Mishpat 227:35, 36, 16).

Shidduchin

Holding back significant medical, emotional or spiritual issues that could affect a shidduch is also prohibited because of onaah. To quote the words of the Sefer Chassidim (#507): “When arranging matches for your children or other family members, do not hide from the other party medical issues that would have been reason for them to reject the shidduch, lest they afterwards choose to annul the marriage. Similarly, you should tell them about deficiencies in halachic observance significant enough that the other party would have rejected the marriage.”

By the way, there is no halachic requirement to reveal detrimental information to a shadchan, and one is not required to inform the other side before the couple meets. However, it must be told sometime before the shidduch is finalized. This particular topic is more detailed than we can discuss in this article. Indeed, I devoted a different article to this topic, entitled “Can I Keep My Skeletons in the Closet.” There are also other articles on the website that touch on this broad topic, which can be found with the search word shidduch.

Insider trading

Insider trading, meaning buying or selling a commodity or security on the basis of information that is not available to the general public, is now a heavily punished felony in the United States, but was once legal there and is still legal in many countries of the world. Halacha prohibits all forms of insider trading because of onaah, since the insider is taking advantage of the other party.

(2) Overpricing

A second type of onaah is when there is no flaw or other problem with the quality of the item being transacted, but the price paid is greater than the item’s market value. Overcharging of this nature is also prohibited because of onaah.

Over a sixth

When the price, or range of price, of an item can be established, if an item was sold at more than one sixth over the market price, the aggrieved party has a right to return the item for a full refund (Shulchan Aruch, Choshen Mishpat 227:4.) For example, the stores that stock this item sell it for up to $600, and the seller charged the purchaser over $700. In this instance, according to halacha, the purchaser can return the item and get his money back. (There are detailed halachos that govern how much time he has to make this claim.)

One can demand return compensation only when the party did not use the item once he realized that he had been overcharged.

Another case where the item cannot be returned: The aggrieved party realized that he was overcharged, but decided to keep the item anyway. In the interim, the price of the item dropped such that he can now get a much better deal. Since his reason to back out on the deal is not because of the original overcharge, he may not invalidate the original sale (Shulchan Aruch, Choshen Mishpat 227:9).

It is interesting to note that there are authorities who rule that even the aggrieving party can withdraw from the deal when the price was so much off mark. This is because they contend that someone does not agree to a transaction if he knows that the price was so disproportionate to the item’s value (Rema, Choshen Mishpat 227:4.)

One sixth

The halacha is that if the overcharge was by exactly one sixth, the deal holds, but the aggrieved party is entitled to be refunded the overcharge sum (one sixth of what he paid). Thus, if the item was worth $600 and it was sold for $700, the purchaser is entitled to receive $100 back.

Less than a sixth

If the overcharge was less than a sixth, which means that the price was clearly too high but less than a sixth over the market value, the deal is valid, and the aggrieved party is not entitled to any compensation. Thus, if the item was worth $600 and it was sold for $690, the deal remains as is.

Is it permitted?

At this stage, we can address one of our opening questions: “Am I permitted to charge a little bit above the market price for an item?” Granted that the deal will be valid if someone did this, is one permitted to do so lechatchilah?

Indeed, this is an issue that is disputed by the halachic authorities (Tur, Choshen Mishpat 227, quoting Rosh). The Tur explains that min haTorah, overcharging is prohibited if one is aware that this is the case, but Chazal were lenient, because it is difficult for anyone to be this accurate. However, many prominent authorities are of the opinion that it is prohibited to overcharge intentionally, even by a very small amount (Aruch Hashulchan, Choshen Mishpat 227:2).

The Tur concludes that a yarei shamayim, a G-d fearing person, should try to act strictly regarding this law.

The Shulchan Aruch rules that it is uncertain whether it is permitted to overcharge by less than a sixth (Shulchan Aruch, Choshen Mishpat 227:6). Some major authorities conclude that a yarei shamayim should return the difference, even in a case where it amounted to less than a sixth (Sma 227:14).

Furthermore, when the price on a specific item is very exact, because of government regulations or market conditions, even those authorities who are lenient about overcharging a small amount will agree in such a case that it is prohibited to charge any more than the accepted market price (Aruch Hashulchan, Choshen Mishpat 227:3).

Cash fast

Here is a situation in which someone cannot demand return compensation, even though he sold the item at way below its value: A seller needed to raise cash quickly and therefore sold items without checking their proper value. He cannot request his money back by claiming that he was underpaid, because it is clear that, at the time he sold them, he was interested in selling for whatever cash he could get (Shulchan Aruch, Choshen Mishpat 227:9).

All items?

The Mishnah (Bava Metzia 56b) quotes a dispute between tana’im whether the laws of overcharging by more than a sixth apply to items such as sifrei Torah, animals and precious stones. The tanna kamma contends that the laws of onaah apply, including the right to have the item returned, whereas Rabbi Yehudah holds that these laws do not apply to such items. In the case of sifrei Torah, this is because the pricing is difficult to determine, and in the cases of animals and precious stones, because the purchaser may have a special need for this specific animal or stone which makes it worth more to him than the usual market price. For example, this animal has the same strength as an animal the purchaser already owns, making it possible to pair them together in work, or the stone matches well to the specific color and size he is using for a piece of jewelry (Bava Metzia 58b).

Wartime

Although most tana’im disagree, the Gemara (Bava Metzia 58b) adds that Rabbi Yehudah ben Beseira ruled that there is no onaah for selling horses, shields or swords during wartime, because your life might depend on it. I presume that this means that during a war, the value of these items far exceeds their normal market price, and that, therefore, even an inflated price is not considered overcharging. The halacha does not follow the opinion of Rabbi Yehuda ben Beseira. Therefore, should someone be overcharged for the purchase of these materials during wartime, he is not required to pay more than the accepted market price.

Overcharged esrog

At this point, we are in a position to examine our opening question: “My esrog dealer charged me $150 for an esrog. My brother-in-law, who knows the business, told me that he overcharged me, and the esrog is not worth more than $35. Can I get my money back?”

This question is discussed in Shu”t Beis Yitzchak (Orach Chayim 108:4). He explains that the laws of invalidating a transaction because of an overcharge do not apply to an esrog purchased for use on Sukkos, unless the esrog was not kosher. His reason is that an individual has all sorts of reasons why he wants to purchase a specific esrog, and that, therefore, high-end esrogim do not have a definitive price. We could compare this to someone who purchases a painting at auction, and an art expert contends that the purchaser overpaid. The opinion of the expert does not allow the buyer to invalidate his acquisition.

Expert error

At this point, let us return to one of our opening questions: “I purchased a rare coin from a dealer, and he clearly undercharged me. Am I required to tell him about it?”

An expert can also be overcharged or underpaid (Mishnah, Bava Metzia 51a; Shulchan Aruch, Choshen Mishpat 227:14). Therefore, the purchaser is required to point this out to the dealer.

Furthermore, if you know that the price of an item has gone up, but the seller is unaware of this, you are required to let him know (Aruch Hashulchan, Choshen Mishpat 227:1).

Mistaken overcharging

A person who overcharged someone in error is required to bring it to his attention. All the halachos mentioned above of overcharging apply, even if it was unintentional (Pischei Choshen 4:10:ftn #1).

Real estate

The Mishnah (Bava Metzia 56a) states that there is no onaah regarding real estate. This means that the concept of a deal being invalidated when the price is more than a sixth overpriced does not relate to land. Nevertheless, it is prohibited to deceive someone in matters germane to property, such as by withholding information that affects the value of the property or its utility (Sma 227:51, quoting Maharshal; Pischei Teshuvah 227:21, quoting Ramban and Sefer Hachinuch).

Title search

If someone sells a property based on his assumption that proper ownership has been established, which is later legally challenged, the purchaser has a claim to get his money back (Shulchan Aruch, Choshen Mishpat 226:5).

Legal tender

At this point, let us examine another of our opening questions: “I noticed that someone tried to scrape off some of the metal on a coin that I have. May I use it?”

In earlier days, a coin’s value was usually determined by its weight and purity. In today’s world, the value of a coin or other currency is determined predominantly by the market forces germane to that country’s currency, but not by the quality of the individual coin, unless it is damaged to the point that it will no longer be accepted in the marketplace. Therefore, today, it is acceptable to use a damaged coin or bill that the average merchant or the bank will accept (Shulchan Aruch, Choshen Mishpat 226:6). One is even lechatchilah permitted to give someone a damaged coin or bill and hoard the nice-looking ones for himself, since it is not harming the other party in any way (Shulchan Aruch, Choshen Mishpat 227:6 and Sma).

Counterfeit money

However, this is true only when the bill or the coin is damaged, but is still legitimate and legal currency. It is forbidden to use counterfeit money, even if you ended up with it in error. Once you know that the currency you are holding is counterfeit, it is not only forbidden to use it, you are required to destroy it (Shulchan Aruch, Choshen Mishpat 227:18). It would seem to me that it is permitted to turn the counterfeit item over to the authorities for investigation and enforcement.

Calculated profit

According to what we have said until now, a person is obligated to know the market value of a product that he is selling and he will violate onaah if he sells it at a price that is clearly significantly above the market price. This means that one must constantly be aware of the fluctuations in market price of all items he is selling. Is there any way one can avoid having to be constantly aware of the market values of the items he is selling?

Yes, there is. It is permitted, halachically, to do the following: A seller may tell the purchaser, “This is the cost at which I acquired this item, and I add this percentage for my profit margin. Therefore, I arrive at the following price” (Bava Metzia 51b as explained by Rambam, Hilchos Mechirah 13:5; Shulchan Aruch, Choshen Mishpat 227:27).

(3) No recourse

Previously, I mentioned that there is a type of onaah in which a person is aware that he is being overcharged, but that circumstances force him to pay more than he should for the item. There are several examples of this. One is when a business or cartel creates a monopoly and then raises prices because they control the market. Since the halachos germane to this situation are somewhat complicated, I will leave this topic for a different time.

A second situation is when someone has a serious need for a product now – and the seller takes unfair advantage, insisting on a price that is well beyond what the item should fetch. For example, someone needs a medicine and can find it only at a certain place, which decides to increase the price tenfold, simply to gain huge, unfair profit. This is forbidden.

Was the seller wrong?

I once purchased a four volume reprint of an old, very hard-to-read edition of a relatively rare sefer. Subsequently, I discovered that the sefer had been reprinted in a beautiful format, a fact which the bookdealer must surely have known. Had I known that the new edition existed, no doubt that I would have purchased it instead. I will leave my readers with the following question: Was the bookdealer permitted to sell me the old edition without telling me that a new one exists? Does this qualify, halachically, as insider trading or deception, and is it therefore prohibited as onaah?

Conclusion

The Gemara tells us that the great tanna Rabbi Yehoshua, the rebbe of Rabbi Akiva, was asked: “What is the best means to become wealthy?” Rabbi Yehoshua advised that, aside from being very careful in one’s business dealings, the most important factor is to daven to He Who owns all wealth (Niddah 70b). A Jew must realize that Hashem’s Torah and His awareness and supervision of our fate is all-encompassing. Making this realization an integral part of our thinking is the true benchmark of how His kedusha influences our lives.

 

 

Over the Rainbow

Question #1: Showing a Rainbow

Should you call someone’s attention to the fact that there is a rainbow?

Are you supposed to look for a rainbow?

Question #2: Niagara Falls

Does one recite a brocha when seeing a rainbow that is not after a storm, such as what one sees at Niagara Falls?

Question #3: How much?

How much of a rainbow must one see to recite a brocha?

Introduction

An entire chapter of Shulchan Aruch is devoted to two short brochos, one recited when one sees a rainbow, and one called birkas hachamah, which we recite only once every 28 years. Both of these brochos are included under the general category called birchos ha’re’iyah, brochos recited upon seeing specific things, whose halachos are spread across nine chapters of Shulchan Aruch (Orach Chayim, from chapter 221-229).

Since the next recital of birkas hachamah will not be for a number of years, and the brocha on the rainbow is based in this week’s parsha, this article will discuss the latter brocha. The common text that we recite for this brocha is, “Boruch Attah Hashem Elokeinu Melech Ha’olam Zocheir habris ve’ne’eman bivriso vekayom bema’amaro,” “Blessed are You, Hashem our G-d, King of the Universe, Who remembers the covenant, is trustworthy in His covenant and fulfills His word.” It should be noted that the version quoted by the Shulchan Aruch (Orach Chayim 229:1) has a slight difference – it is missing a vov before the word “ne’eman,” thus reading: “Boruch… Zocheir habris, Ne’eman bivriso vekayom bema’amaro,” and is translated as two sentences, “Blessed are You, Hashem our G-d, King of the Universe, Who remembers the covenant. He is trustworthy in His covenant and fulfills His word.”

Unusual brocha

Isn’t this a strange text for a brocha referring to Hashem? In what other brocha do we discuss Hashem’s trustworthiness and memory?

The answer is that the world is full of evil people who could be the cause for its destruction. The reason that the world is not destroyed is because Hashem promised Noach that He would not put an end to it. The additional words, that “He… fulfills His word,” are because, as we will soon see, the Torah does not mention that there was any promise or oath — simply Hashem’s declaration to Noach (Avudraham, page 187).

Before analyzing further the brocha and the Gemara that teaches us this mitzvah, let us read the pesukim in this week’s parsha, upon which this brocha is based.

Rainbow way up high

After Noach and his family exited the teivah, Hashem tells them, “I am establishing My covenant with you and the descendants that will follow you… and I will confirm My covenant with you that I will never again destroy all flesh with the waters of the flood, and there never again will be a flood to destroy the earth. And G-d said: This is the sign of My covenant that I am providing between Me and between you and all living creatures that are among you, for all future generations. I have placed My rainbow in the clouds, and it will provide a sign of a covenant between Me and between the earth. And it should be, when I place a cloud over the earth and the rainbow becomes visible in the cloud. I will then remember My covenant that is between Me and you and all living creatures, and the water will never become a flood to destroy all flesh. When the rainbow is in the cloud, I will see it and remember the eternal covenant between G-d and between all living creatures on the earth” (Bereishis, 9:11-16).

The dreams you dare to dream

Seeing a rainbow should evoke mixed feelings in us. On the one hand, it is a beautiful phenomenon of nature that truly demonstrates the nifla’os haBorei, Hashem’s wondrous Creation. The Gemara shares with us an event that bears this out. Once, it was in the middle of the dry season in Eretz Yisroel, when it never rains. Several of the tanna’im were studying intently some deep kabbalistic ideas. Suddenly, the Heavens became covered with clouds and a rainbow appeared in them, and the ministering angels gathered together, the way people gather to see the celebrations of a bride and groom, in order to hear the kabbalistic words emanating from the scholars (Chagigah 14b).

Similarly, we have the following passage of Gemara (Brochos 59a): “Rabbi Yehoshua ben Levi said, ‘one who sees a rainbow in a cloud should fall on his face, as the verse states, Kemar’eih hakeshes asher yihyeh be’anan beyom hageshem kein mar’eih hanogah saviv shehu mar’eih demus kevod Hashem, As the rainbow appears in the cloud on a rainy day, so appeared the brilliant surrounding light; this is the image of the Honor of Hashem (Yechezkel 1:28).”

The Gemara there concludes not in accordance with the opinion of Rabbi Yehoshua ben Levi, and therefore one should not prostrate himself upon seeing a rainbow, for the following reason: In Eretz Yisroel, they criticized the practice of bowing when seeing a rainbow, because it gives the appearance that one is worshiping the rainbow.

On the other hand, the rainbow also demonstrates Hashem’s covenant that He will never again bring a flood to destroy life on earth. Yet, seeing the rainbow implies that the covenant is necessary to avoid that destruction. This is not very reassuring about the state of mankind’s behavior and Hashem’s justified wrath. For this reason, in the era of the Gemara, it was a source of pride for one to have lived in a generation when a rainbow never appeared (Kesubos 77b)!

Indeed, the Shulchan Aruch concludes the laws of reciting the brocha on the rainbow with the following: “And it is prohibited to gaze at it (the rainbow) more than necessary.” The Gemara (Chagigah 16a) reports that gazing at the rainbow is bad for one’s eyes.

As a matter of fact, the rishonim ask this question: How can one look at the rainbow to recite the brocha, if gazing at it is harmful? They answer that it is only harmful to gaze at a rainbow, but not to notice it or glance at it. Thus, when noticing it, one should recite the brocha, but not look at it again afterwards (Rosh, cited by Avudraham).

Really do come true

Let us now examine our opening question: Should you call someone’s attention to the fact that there is a rainbow? Are you supposed to look for a rainbow?

The Chayei Odom (Klal 63:4) mentions, “I saw in a work, whose name I no longer remember, that one should not tell someone else that he saw a rainbow, since this is disparaging information.” The Mishnah Berurah and the Kaf Hachayim both quote this Chayei Odom. The question is that we usually assume that we are allowed to share bad news, for example, so that people know to attend a funeral or to make a shiva visit. Why not tell people about a rainbow, so that they can recite the brocha?

The answer appears to be that although the news of someone’s passing is something not good, it is not disparaging regarding anyone. However, the appearance of the rainbow is understood to demonstrate that Hashem is telling us that He is keeping His deal not to destroy the world with a flood. This statement has highly negative connotations for the entire world’s level of ethics and morality, and we want to avoid implying anything disparaging.

An alternative, similar explanation that I once heard is that one should not call attention to the rainbow, since it might make them dejected to see how wretched and undeserving the world is.

Skies are blue

A question relative to these verses is raised by the rishonim. The pesukim imply that the rainbow was created after the mabul, as a covenant. Indeed, the Ibn Ezra explains the verse this way, disputing an earlier interpretation of the posuk from Rav Saadiya Gaon. However, scientifically, if the correct factors of moisture in the air and sunlight exist, the resultant refraction of light causes a rainbow, which means that the factors causing the rainbow existed from Creation and not only after the mabul. This question was already asked by the Ramban in his commentary, which I will now quote: “‘This is the sign of My covenant that I am providing.’ One is given the impression that the rainbow in the clouds was not existent as part of Creation, but that now Hashem created a rainbow in the Heavens… . However, we are compelled to believe the words of the Greeks, that the light of the sun through moist air creates a rainbow, since taking a vessel of water before the sun will cause something similar in appearance to a rainbow.”

The Ramban continues: “When we examine further the phraseology of the verse, we will also understand (as did the Greeks), for it says ‘I have placed my rainbow in the cloud,’ rather than ‘I am now placing my rainbow in the cloud.’” The Ramban proceeds to explain that the rainbow, indeed, existed since Creation, but now, after the mabul, it became the testimony to the covenant. In other words, an already existing item now assumed a role as a testament and reminder to an agreement or covenant. The Ramban demonstrates that there are many other examples of this in Chumash.

Text of brocha

Germane to the text of the brocha we recite, the Gemara records the following: “One should certainly recite a brocha (upon seeing a rainbow). What brocha does he recite? ‘Blessed is He who remembers the covenant.’ A beraisa teaches a different text: Rabbi Yishmael the son of Rav Yochanan ben Beroka says, ‘He is trustworthy in His covenant and fulfills His word.’ Rav Papa ruled, ‘Therefore we should recite both texts: Blessed is He Who remembers the covenant, is trustworthy in His covenant and fulfills His word” (Brochos 59a). This is the source for the text of the brocha as we recite it, Boruch Attah Hashem Elokeinu Melech Ha’olam zocheir habris vene’eman bevriso vekayom bema’amaro.

Nevertheless, we find that there were other ways of understanding the conclusion of the Gemara and different versions of its concluding text. There was an old custom to recite the following text to this brocha: Ne’eman bevriso vekayom bema’amaro, Boruch Attah Hashem Zocheir habris,” “He is trustworthy in His covenant and fulfills His word, Blessed are You, Hashem, Who remembers the covenant.” This version does not begin with our standard introduction for all brochos, nor does it mention at all that Hashem is King of the world. (The Shelah Hakodesh mentions a slight variation of this text which includes also Elokeinu Melech Ha’olam in its closing.) With the exception of a brocha that is a later one in a sequel, called a brocha hasemucha lachavertah, all brochos begin with our well-known formula Boruch Attah Hashem Elokeinu Melech Ha’olam. (Examples of brocha hasemucha lachaverta are the brochos of shemoneh esrei, bensching, birchos kerias shma and sheva brochos. In these instances, the brochos that do not begin with the word boruch follow other brochos.) This is not the case with the brocha on a rainbow, which is not a sequel to another brocha, and therefore should begin with the words Boruch Attah Hashem Elokeinu Melech Ha’olam.

In addition, brochos that are short and not multi-themed do not have a closing of Boruch Attah Hashem. These endings are restricted to brochos that are lengthier.

Precisely for these reasons, the authorities universally reject the text Ne’eman bevriso vekayom bema’amaro, Boruch Attah Hashem Zocheir habris, since it violates the structural rules for brochos established by Chazal (Bach; Pri Megadim). The poskim contend that this errant version was based on a misunderstanding of the text of the Gemara (Drisha, Orach Chayim 229, quoting his rebbe, the Maharshal).

Different text

Tosafos quotes a slightly different version of the brocha, which might have been based on a variant text of the Gemara passage: Boruch Attah Hashem Elokeinu Melech Ha’olam ne’eman bivriso vekayom beshevuaso vezocheir habris,” “Blessed are You, Hashem our G-d, King of the Universe, Who is trustworthy in His covenant, fulfills His oath and remembers the covenant” (Tosafos, Brochos 59a s.v. Hilchach I).

One of the interesting points about this text is that it mentions that Hashem swore an oath regarding the rainbow. Although this idea is not mentioned in the Torah, it is mentioned by the prophet Yeshayohu (54:9), Ki mei Noach zos li asher nishbati mei’avor mei Noach od al ha’aretz, kein nishbati mi’ketzof alayich umi’ge’or boch, “These shall be for Me like the waters of Noach, which I swore never to bring again onto the earth. So, too, have I sworn not to become angry with you or to rebuke you.” These words are part of the reading for this week’s haftarah, as well as for that of parshas Ki Seitzei.

Somewhere over the rainbow

At this point, let us discuss our third opening question: “How much of a rainbow must one see to recite a brocha?”

Strangely enough, this question is not discussed by any of the standard, early authorities. The Mishnah Berurah, in his Biur Halacha commentary, does raise this question, stating that there are no halachic sources that clarify whether one recites the brocha only when he sees the entire arch of a rainbow, which is a 180 degree arc, or even if one sees only a small section.

Dreams really do come true

Among the things one sees that require a birchas ha’re’iyah, some require a brocha only when one has not seen them in the last thirty days, such as the brochos on magnificent mountains and seas, or the brochos upon seeing destroyed cities of Israel. There are also brochos that are recited more frequently, should the occasion present itself, such as the brocha recited when seeing lightning. The halacha is that, once the storm clears, should one see lightning accompanying a new thunderstorm, one recites the brocha again. What is the halacha regarding a rainbow? In the event that a new rainbow is the result of a different rainstorm, should one recite a new brocha? The halachic conclusion of the authorities is that one does (Shaarei Teshuvah 229:1 and other acharonim.).

A land that I heard of once

At this point, we can address the second of our opening questions: Does one recite the brocha only if one sees a rainbow after a storm? What is the halacha if one saw a rainbow elsewhere, such as at Niagara Falls or at Paterson Falls, right near New York City; does one recite a brocha?

The wording of the posuk, the Gemara and the poskim implies that the brocha is recited only when the rainbow appears in the clouds, related to a storm. Thus, there should be no brocha recited on a rainbow from any other source.

Way up high

A natural phenomenon that occasionally occurs is a double rainbow, in which a reversed-direction rainbow appears in the sky, high above a lower rainbow. There is an opinion among the late poskim that one recites the brocha only when seeing this particular type of rainbow, which means that one would rarely recite the brocha of Zocheir habris ve’ne’eman bivriso vekayom bema’amaro. One can rally an earlier comment as a source for this position, since one finds that the Seforno, in his commentary to the posuk in parshas Noach, understands that this was the type of rainbow that Hashem described to Noach as His covenant.

However, the well-known later authorities who quote this opinion conclude that one may ignore it, since none of the established early halachic authorities mentions this requirement for reciting the brocha (Ben Ish Chai, Parshas Eikev #17; Kaf Hachayim, 229:4). The Ben Ish Chai mentions that if an individual, when seeing a regular rainbow, chooses to omit the mention of Hashem’s name when reciting the brocha out of concern for this opinion, one should not rebuke him for this, notwithstanding that this approach is not the accepted halacha.

Conclusion

One of the understood messages of the rainbow is that it points upward, whereas the archer’s bow, which is a weapon, is always bent in the direction of its target. Thus, one of the symbolisms of the rainbow is that Hashem is pointing the potential weapon in the wrong direction, rendering it useless.

Rav Hirsch, in his beautiful explanation of Tehillim 75, notes that Asaf prophesies the end of warfare, when man’s weapons will become useless. Thus, our major hope is that man lose interest in his ability and his incentive for all warfare, and allow for the teaching of Hashem to permeate the earth. This fulfills the famous words of the prophet Yeshayohu (2:4) and echoed by Michah (4:3), Vechitesu charvosam le’itim vachanisoseihem lemazmeiros. Lo yisa goy el goy cherev velo yilmedu od milchamah, “They shall beat their swords into plowshares and their spears into pruning forks. No nation will raise a sword against another, and they will no longer learn warfare.”

 

Who Drinks the Kiddush Wine in Shul?

In honor of Parshas Bereishis and the first Shabbos

Drinking in shul

Why is the Kiddush wine in shul given to a child?  If an adult is not permitted to drink before he has personally fulfilled Kiddush, can we cause a child to drink?

Background

The underlying question here is the following: The Torah commands us not only to observe the mitzvos of the Torah, but also not to cause someone else to violate the Torah. This law prohibits even causing a child to violate the Torah, notwithstanding that a child himself is not required to observe the mitzvos. Furthermore, it applies even when the child is, unfortunately, not being raised in an observant way. It is therefore forbidden for someone who has a babysitting job to feed a Jewish child non-kosher food, or to serve non-kosher food to a Jewish adult in a nursing facility or to a Jewish child in a school cafeteria.

The source

There are three different places from which we derive that it is prohibited to cause a child to violate commandments of the Torah (Yevamos 114a). These hermeneutic allusions are in the context of the following three mitzvos:

(1) The prohibition against eating sheratzim, tiny creatures.

(2) The prohibition against eating blood.

(3) The prohibition for a kohen to come in contact with a corpse.

We will soon see the significance of the three sources.

What age child?

This law applies even to a child too young to understand what a mitzvah is (Magen Avraham 343:2). Therefore, one may not use a baby blanket or baby clothes made of shatnez (Shu”t HaRashba HaChadoshos #368; Shu”t Beis Yehudah, Yoreh Deah #45; Eishel Avraham [Butchatch], Orach Chayim 343:1). Similarly, one is prohibited to feed a newborn infant non-kosher food, unless it is a life-threatening emergency (Magen Avraham 343:2).

Based on the above sources, we can now appreciate our opening question. “Why is the Kiddush wine in shul given to a child?  If an adult is not permitted to drink before he has personally fulfilled Kiddush, can we cause a child to drink?” To explain this topic better, let us examine its halachic background.

Friday night Kiddush in shul

At the time of the Gemara, Kiddush was recited in shul Friday night because of visitors who would eat their meals in guest rooms that were located adjacent to the shul (see Pesachim 101a and Tosafos s.v. DeAchlu). The fact that the guests ate their meals nearby is significant because of the principle, ein Kiddush ela bimkom seudah — one fulfills the obligation for Kiddush only when it is recited or heard in the same place where one intends to eat one’s Shabbos repast. Someone who hears Kiddush but does not eat a “meal” where he heard it does not fulfill the mitzvah of hearing Kiddush. Discussing the details of ein Kiddush ela bimkom seudah requires a separate, lengthy article; but, for our purposes, we will say that most authorities conclude that eating a significant amount of food on which we recite a mezonos satisfies the requirement of a seudah.

A bit later in history

In the era of the Rishonim, several hundred years after the Gemara, no one ate Friday night meals in the shul building, yet the custom to recite Kiddush at the end of davening was still commonly observed. Although we find many authorities who ruled that one should not recite Kiddush under these circumstances, most communities continued the practice of reciting Kiddush in shul (Tur and Beis Yosef, Orach Chayim 269).

Why do we continue to recite Kiddush?

If no one fulfills the mitzvah with the Kiddush recited in shul, why did the practice continue? This question is discussed by several of the Geonim and the Rishonim, and I will present here some of their approaches.

Rav Naturanai Gaon states that one should recite the Kiddush in shul because of the benefit that hearing Kiddush has for one’s vision. This idea is based on the Gemara’s statement that taking overly-long strides damages one’s vision, and that the Friday evening Kiddush restores the vision that has been lost (see Brachos 43b). Since not every household had wine on which to recite Kiddush, the custom developed to recite Kiddush in shul for this therapeutic purpose. It appears that, according to Rav Naturanai Gaon‘s reason, no one needs to drink the Kiddush wine in shul, since its purpose is not to fulfill the mitzvah.

The Tur objects

However, the Tur, who quotes Rav Naturanai Gaon, sharply disputes the reason. This is because the Gemara explains that the basis for Kiddush in shul is for guests and not the therapeutic reason of Rav Naturanai Gaon.

Another early authority, Rabbeinu Yonah, presents a different explanation for reciting Kiddush in shul, even though the reason mentioned by the Gemara no longer applies. Rabbeinu Yonah contends that the Kiddush was for the benefit of people who did not know how to recite Kiddush and who would simply not fulfill the mitzvah at all. When these people heard Kiddush in shul, they fulfilled the mitzvah min haTorah, notwithstanding the fact that they did not observe the mitzvah as Chazal instructed, since it was not Kiddush bimkom seudah (Rabbeinu Yonah, quoted by Rosh). Thus, Rabbeinu Yonah assumes that the requirement of Kiddush bimkom seudah is a rabbinic ordinance, and that we would recite the Kiddush in shul for the sake of those who would thereby fulfill the Torah mitzvah.

Not all authorities agree with this approach. The Rosh contends that the requirement of Kiddush bimkom seudah is min haTorah. Thus, simply hearing Kiddush without eating then and there does not fulfill any mitzvah and would, therefore, not provide a satisfactory reason to recite Kiddush in shul.

Other authorities explain that reciting Kiddush in shul has a status of a takkanah, a rabbinically-ordained practice that we continue to observe, even though the reason it was established no longer applies (Rashba and Ran, quoted by Beis Yosef). (We should note that although the Tur and the Shulchan Aruch discuss the practice and logistics of reciting Kiddush in shul, they both state that it is preferred not to recite Kiddush in shul. For this reason, many shuls do not recite Kiddush Friday night. However, where the custom is to recite Kiddush in shul, one should continue the practice.)

Kiddush catch-22

Regardless which rationale we use to explain why we recite Kiddush in shul, the Tur raises the following question: The halachah requires that someone drink from the Kiddush wine (Pesachim 105b; Eiruvin 40b), and also prohibits drinking before fulfilling the mitzvah of Kiddush. Since no one is eating in the shul building, no one fulfills the mitzvah with that Kiddush, because of ein Kiddush ela bimkom seudah. Thus, whoever drinks from the Kiddush wine in shul is drinking before he has fulfilled the mitzvah of Kiddush, which is prohibited; yet, someone must drink from the Kiddush wine.

To resolve this predicament, the Tur recommends that the Kiddush wine in shul be given to a child to drink, which, he notes, fulfills the requirement that someone drink from the Kiddush wine (Tur, Orach Chayim 269).

Kiddush conundrum

However, it is not clear how this innovation of the Tur resolves the predicament in a satisfactory way. How can we give a child the Kiddush wine? As we learned above, we are not permitted to cause a child to violate halachah – and he is drinking without fulfilling the mitzvah of Kiddush!

This difficulty is raised by the Beis Yosef, who suggests three solutions to the problem:

  • All three sources of the halacha not to cause a child to violate the Torah — not to eat tiny creatures, not to eat blood, and that a kohein not become tamei from a meis — are lo saaseh prohibitions of the Torah. There are halachic authorities who rule therefore that the proscription to cause a child to violate the Torah applies only to mitzvos of at least the level of a lo saaseh, but not to any prohibition that is considered halachically a lesser offense, such as an issur aseh or a mitzvas aseh, and that it certainly does not apply to a mitzvah miderabbanan (Hagahos Maimoniyos, Shabbos 29:40). Since Kiddush is a mitzvas aseh and not a lo saaseh, it is permitted to cause a child to violate its laws. As a result. some authorities permit causing a child to eat or drink before he has fulfilled the mitzvah of Kiddush.

Although this approach can be used to justify the Tur’s proposal, the Beis Yosef notes that many authorities reject this limitation and contend that one may not cause a child to violate any prohibited action. To justify the practice of giving the wine to a child according to their opinion, we need to find an alternative reason to explain why the shul Kiddush is given to a child. Therefore, the Beis Yosef presents two other approaches to explain the practice.

Not yotzei, but may drink

  • Although, in general, one may not drink before fulfilling the mitzvah of Kiddush, there is an opinion among Rishonim that one who recites Kiddush to benefit others may drink the wine of Kiddush, even when he is not now fulfilling the mitzvah (Rabbeinu Shemuel in the name of the Sar of Coucy [one of the Baalei Tosafos], quoted by Mordechai, Pesachim, Tosefes MeiArvei Pesachim, page 35a). The Beis Yosef explains that, although we do not usually follow this position, we may have the children rely on it, as a means of resolving what to do with the Kiddush

A third approach

  • The Beis Yosef presents a third approach, perhaps the most unusual, to explain why we permit a child to drink the wine of Kiddush. Because we must recite the Kiddush and we do not want the brocha of Kiddush to be recited in vain, we permit a child to drink the wine, even though this is an act that we would otherwise prohibit.

Halachic differences

There are obvious differences in practical halachah between these approaches. The first opinion holds that one may cause a child to do something that an adult may not do, provided that the prohibition is less severe than a lo saaseh (see also Rashba, Shabbos 121a; Ran, Yoma, 1a). (Even according to this approach, because of the laws of chinuch, the child’s father, and possibly the mother, may not have him drink, if the child is old enough to be educated. Thus, this heter may not apply if the father gives his own son the wine of Kiddush in shul.) Based on this opinion, some authorities permit directing a child to carry something on Shabbos in an area where carrying is prohibited only miderabbanan, if the child needs the item (see also, Shu”t Rabbi Akiva Eiger 1:15; Biur Halachah 343). However, the Shulchan Aruch (Orach Chayim 343:1) and the Magen Avraham (343:3) prohibit this.

According to the third approach, only one child should drink the Kiddush wine in order to minimize the amount of violation performed, whereas the other two answers permit serving the Kiddush wine to any child who desires. (I note that I have never seen any place that allows only one child to drink the Kiddush. Customarily, many of the children in shul line up to sip the Kiddush wine. This practice implies that this third approach was not accepted as the reason for the custom.)

Matzoh on Erev Pesach

Here is another case where the above-mentioned approaches may disagree: May I feed a child matzoh on Erev Pesach? The Terumas HaDeshen contends that, according to the answer that the prohibition is only to feed a child something that is prohibited with the stringency of a lo saaseh, one may feed a child matzoh on Erev Pesach, which is not as severe a prohibition (Terumas HaDeshen #125). However, he concludes that if the child is old enough to appreciate the Seder, one may not feed him matzoh on Erev Pesach for a different reason — because this runs counter to the experience of matzoh being special on Seder night. (Further discussion on this topic can be found in Rama, Orach Chayim 471:2 and the commentaries thereon.)

Yet a fourth approach

Some later authorities did not feel that the approaches suggested by the Beis Yosef explain the Tur’s ruling in a satisfactory way. They therefore presented other reasons to explain why it is permitted to give a child the Kiddush wine before he has fulfilled the mitzvah. One approach is that it is forbidden to cause a child to violate a Torah law only when the prohibition applies at all times. However, it is permitted to cause a child to perform an activity that is usually permitted, but that is prohibited at this particular time. Following this reason, one may feed a child on Yom Kippur, since eating and drinking are activities that are usually permitted, even though this is a very severe prohibition for an adult (Sefer HaYashar #52). (There are authorities who rule that, according to the previous answers, one is permitted to feed a child on Yom Kippur only when it is a life-threatening emergency, but a child old enough to feed himself should not be fed by an adult, but instead be told where food can be located [Minchas Chinuch, Mitzvah 313; see also Mikra’ei Kodesh of Rav Pesach Frank, Yamim Nora’im, page 149].) Therefore, there is no problem giving a child wine before he has fulfilled the mitzvah of Kiddush, since drinking wine, in general, is a permitted activity (Magen Avraham 269:1).

Another difference in halacha

This last answer also results in a different halachic practice than that of the previous approaches. According to this last answer, one may feed a child on Yom Kippur, even when the child could feed himself. It is also permitted to feed any child before he has heard Kiddush, as long as the child is below the age of bar or bas mitzvah.

A minor kohen

At this point, I would like to discuss a related question. Rivkah Katz* asks me: “My husband and sons are kohanim. Am I required to be careful where I take my infant son?”

In the first pasuk of parshas Emor, the Torah (Vayikra 21:1) states, Emor el hakohanim benei Aharon, ve’amarta aleihem lanefesh lo yitama be’amav — Say to the kohanim, the sons of Aharon, and you shall say to them, that they shall not contaminate themselves to a dead person among their people. Since the Torah repeats the word say, we derive that there are two levels of responsibility here, and since usually it says the sons of Aharon, the kohanim, and here it reverses the order, the Torah is commanding that an adult must not cause a child kohen to become tamei (Yevamos 114a, as explained by Bach, Yoreh Deah 373). From the wording of the Rambam (Hilchos Aveil 3:12), we see that every adult Jew, even a non-kohen, is commanded not to make a child kohen tamei. This requires everyone to know the halachos of what makes a kohen tamei. One cannot have the attitude that, since I am not a kohen, these laws are not relevant to me.

We can therefore answer Rivkah’s question: She is, indeed, required to find out all the halachos germane to kohanim becoming tamei, so that she knows where she may bring her son, and where she may not.

An adult kohen

Another related question I was once asked:

“My father-in-law, who is not observant, is a kohen, whereas I am a Yisroel. Are we required to be as stringent about where we go on family outings as we would if I myself were a kohen?”

Answer:

The Rambam rules that it is forbidden for a non-kohen to make an adult kohen tamei (Rambam, Hilchos Aveil 3:5). To quote the Rambam: “If the kohen is unaware that what he did is forbidden, and the adult who made him tamei knows that it is forbidden, then the adult violates the lo saaseh. If the adult kohen knows that it is forbidden, then the other person violates only lifnei iveir lo sitein michshol, do not place a stumbling block before a blind person (Vayikra 19:14).” Chazal interpret this pasuk to mean that one may not give someone bad advice, nor cause him to violate a prohibition (Pesachim 22b).

Thus, we see that, indeed, one must be concerned about where one takes grandpa, even if he himself is not concerned. For a reason that is beyond the scope of this article, this is true even if grandpa is already tamei meis.

Conclusion

Chazal say in Pirkei Avos: “Kol she’ruach habrios nocha heimenu ruach hamakom nocha heimenu,” One who is pleasing to his fellowman is pleasing to his Creator. Being concerned that we not harm others halachically is certainly part of both our social responsibility and our halachic responsibility. When we do our mitzvos properly, others will see us and say, “He is a frum Jew — he lives his life on a higher plane of caring for others.”

*Name has been changed to protect privacy.

 

Blessings and Guardrails

Mitzvas maakeh is mentioned in this week’s parsha.

Blessings and Guardrails

Question #1: Who makes the brocha?

“If someone performs a mitzvah as my agent, can I still recite a brocha on the mitzvah?”

Question #2: Am I doing the mitzvah?

“Do I fulfill the mitzvah of building a maakeh if I hire a non-Jew to do it for me?”

Question #3: When do I bless?

“If I am performing a mitzvah that will take a long time to fulfill, when do I recite the brocha?”

Introduction:

Reb Gavriel*, a talmid chacham whom I know, is having his house remodeled, including adapting a roof area for use, which will require the assembly of a maakeh, a fence, wall or railing high enough and strong enough to prevent someone from falling (see Devorim 22:8). He asked me the following: “I will now have the first opportunity of my life to fulfill the mitzvah min hatorah of building a maakeh. My question is: The construction workers are not Jewish. Can I recite a brocha on performing this mitzvah, when gentiles are doing the work? And, if I recite a brocha, when do I recite it, since this construction will take several weeks?”

Let me explain Gavriel’s excellent questions. Prior to performing a mitzvas aseh, a positive mitzvah, we recite a brocha thanking Hashem for the opportunity to fulfill His commandments. These brochos are what we call birchos hamitzvah. They begin with the words Boruch Ata Hashem Elokeinu Melech ha’olam asher kideshanu bemitzvosav vetzivanu and conclude with the words appropriate to the specific mitzvah. According to the majority of halachic authorities, one recites a brocha on constructing a maakeh, since by constructing this maakeh one fulfills a positive mitzvah of the Torah (Sedei Chemed, Volume 5, page 250, provides analysis of this point). The rishonim cite several slightly variant texts detailing how one concludes the brocha recited for fulfilling this mitzvah. (See commentaries She’eilas Shalom and Ha’eimek Hasheilah to She’iltos, Eikev #145, who discuss what is the proper text of the brocha.) I believe that the accepted Ashkenazic practice is to complete the brocha with the words: Al mitzvas maakeh.

In Reb Gavriel’s case, there are three questions:

  1. Can I recite a brocha when I am not performing the mitzvah myself?
  2. Do I fulfill a mitzvah when it is performed by hirees who are not Jewish?
  3. At what point in the construction should I recite the brocha?

Who recites the brocha?

Reuven asks Shimon to search his (Reuven’s) house for chometz. Can Reuven recite the brocha of al bedikas chometz on Shimon’s search? (We should note that, in general, someone obligated to perform a mitzvah should do the mitzvah himself, rather than assign it to someone else, a principle called mitzvah bo yoseir mibeshelucho, it is a bigger mitzvah to perform a mitzvah yourself than via proxy [Kiddushin 41a].)

On the one hand, Reuven is fulfilling the mitzvah, not Shimon. On the other hand, Shimon is the one who is actually performing the mitzvah.

The Magen Avraham states that the agent doing the act of the mitzvah can recite the brocha (432:6), but he also implies that should Reuven want to recite the brocha, he may do so, even if he himself did not participate at all in the act of performing the mitzvah (432:5). They should not both recite the brocha – for one of them, this would constitute a brocha levatalah, a brocha recited in vain.

Shelichus

The Torah teaches a principle that a person can perform a mitzvah, create a transaction, or discharge a legal requirement by having an agent act on his behalf, a concept called shelichus. Because of this rule, a husband can appoint someone to write a get on his behalf, or deliver a get to his wife. Similarly, I can appoint someone to separate challah from dough that I have prepared, or appoint someone to be my agent to carry out a transaction, such as having a rav sell my chometz.

Ein shelichus lenachri

Although I can appoint a proxy to separate terumos or challah for me or to carry out a transaction on my behalf, that agent must be Jewish. The Torah did not extend the concept of agency to non-Jews, either to allow a gentile to function as surrogate for someone else or to have a gentile appoint a surrogate on his own behalf. A result of this halachah is that a Jew cannot appoint a gentile to separate challah. Thus, a Jewish-owned bakery that has non-Jewish employees mixing dough must make provisions to have a Jew take challah. If a gentile did the act of separating challah, no mitzvah was performed.

According to this reason, it would seem that if Reb Gavriel has non-Jewish workers building his maakeh, the mitzvah was not fulfilled. He is not doing the construction himself, and the people he hired are ineligible to be his agents. It is true that there is no longer any danger of having an unfenced roof, and, therefore, one is not in violation of allowing a safety hazard to exist, lo sasim damim beveisecha (Devorim 22:8). Yet, it would seem that the positive mitzvah to build a railing was technically not observed, since it was constructed in a way that no one fulfilled the mitzvah.

Enter the Machaneh Efrayim

Yad po’el keyad baal habayis

  1. The Gemara teaches a principle; yad po’el keyad baal habayis, literally, the “hand” of the worker is treated as the hand of the employer (Bava Metzia 10a). If I hire someone to perform general work – regardless of what he is assigned to do — and he finds an unowned object in the course of his work, the employer becomes the owner of the object. How did the employer gain ownership of the item, when it was the employee who found it and picked it up? The Gemara explains that since the employer hired the worker to do whatever needs to be done during the period of his service, the employer owns even the worker’s ability to take possession of items, which is called a yad, a hand, in halachic jargon.

The Machaneh Efrayim extends the principle of yad po’el keyad baal habayis to Reb Gavriel’s situation. When I hire someone to be my general worker, it is considered that I built the railing myself. I have therefore fulfilled the mitzvah and may recite the brocha. This principle does not apply when I hire a worker for a specific job (see Aruch Hashulchan, Choshen Mishpat 427:3).

There are other ramifications of this principle of the Machaneh Efrayim. Although there is an obligation to separate terumos and maasros from produce growing in a Jew’s field in Eretz Yisroel or in the lands nearby, one is not required to separate them until the harvesting process is complete. At the time of the Mishnah/Gemara, this entailed leveling off the pile of grain or other produce, after all had been harvested. The Machaneh Efrayim contends that, even if this leveling was performed by a gentile employee or hiree, the owner becomes obligated to separate terumos and maasros. Despite the fact that a non-Jew cannot function as a proxy, the processing he performs as an employee obligates the owner to separate maasros.

Construction is different

  1. The Machaneh Efrayim presents a second line of reasoning why someone who hired a gentile to build a railing has fulfilled the mitzvah. The rule that a gentile cannot be my agent is only when something requires agency to be effective, such as the separation of challah, the delivery of a get, or creating a transaction. In each of these cases, a change of status or ownership is effected by someone’s intent. Without intent on the part of the person creating the change or transaction, nothing has happened – the dough  that was separated did not become challah, the woman did not become divorced, the chometz was not sold. In these instances, since the Torah did not create a concept of shelichus for gentiles; if I appointed someone non-Jewish to separate challah or to carry out agency, nothing has transpired.

However, contends the Machaneh Efrayim, when a physical act is being done, such as the construction of a railing, we are not dealing with a legal effect, but an on-the-ground, physical result. This is not a function of the laws of shelichus, but a practical matter. Since the railing now exists, I have fulfilled the mitzvah and can recite the brocha, regardless who actually constructed it.

Railing about the railing

Notwithstanding that the Machaneh Efrayim concludes that Reb Gavriel could recite a brocha when his gentile workers build the maakeh, many later authorities dispute either or both of his reasons (Shaar Hamelech, Terumos 1:11; Shu’t Shivas Tziyon #53; Nesivos Hamishpat, Chapter 188; Minchas Chinuch, Mitzvah #546; Shu’t Sha’ul Umeishiv, Volume 1, part 2 #110; Ulam Hamishpat, Chapter 188; Shu’t Birchas Retzei  #75; Sedei Chemed, Volume 5, pages 249-250). Regarding his first approach, that, because of the concept of yad po’el keyad baal habayis, it is considered that the employer built the railing himself, there are two different reasons to refute his position. Firstly, there is no evidence that the halachic concept yad po’el keyad baal habayis applies to non-Jewish employees. All the places in which the Gemara applies this rule involve Jewish workers, and there are valid reasons why one should not be able to compare the two.

Furthermore, even if yad po’el keyad baal habayis applies to gentile workers, there is a big jump in logic to apply this principle to the construction of a railing. If, in the course of his day’s work, an employee acquires something on behalf of the employer’s business, one could argue that the employer made the transaction, since he owns the employee’s yad.  However, how does the act of the gentile employee, such as constructing a railing, become the act of the Jewish employer, in such a way that he did the act of the mitzvah himself and can therefore recite a brocha? A mitzvah must be performed by someone who can be commanded to fulfill this mitzvah. The action performed by the gentile does not become the act of the employer because of yad po’el keyad baal habayis.

To demonstrate the difficulty with the Machaneh Efrayim’s approach, some authorities contend that, according to the Machaneh Efrayim, if a Jew instructed his gentile employee to plow using a donkey and an ox, the Jew will be liable for malkus, lashes, for violating the Torah violation of having them work together, since his gentile employee’s action is considered as if he did it himself (Shu’t Shivas Tziyon #53). Although it is prohibited to hire a gentile to do this, it is highly surprising to assume that the Jew should be liable for malkus in such a situation.

Is this chometz she’avar alav hapesach?

The Machaneh Efrayim’s principle created a problem for a community in a very different case. The local branch of a Jewish-owned business was managed completely by gentiles. The question was whether the chometz that the non-Jewish employees of the local branch purchased on behalf of the business before Pesach becomes prohibited because of chometz she’avar alav hapesach, chometz that was owned by a Jew in the course of the holiday. The questioner, Rav Yaakov Mendel Friedman, the rav of Nadvorna, wanted to permit the chometz on the basis that, since there is no agency of non-Jews, the chometz is halachically considered to have been owned by gentiles over Pesach. However, he noted that, according to the Machaneh Efrayim, since the gentiles are the employees of the Jewish owners, the chometz is deemed to have been owned by Jews over Pesach, and it is therefore prohibited. He sent the question to Rav Tzvi Hirsch Orenstein, a respected nineteenth century posek in Lithuania and Poland. (During his lifetime, he served successively as rav in Brisk, Reisha and Lvov.) Rav Orenstein ruled that accepted halachah does not follow the opinion of the Machaneh Efrayim (Shu’t Birchas Retzei #75).

Other railings

The second reason presented by the Machaneh Efrayim why someone could recite a brocha upon the assembly of a railing built by a non-Jew was that the owner fulfills the mitzvah of building a maakeh, no matter how the railing actually became constructed. Notwithstanding the Machaneh Efrayim’s contentions, others dispute his conclusion that this is considered that the Jew performed the mitzvah.

It appears that most authorities reject the position of the Machaneh Efrayim and contend that one should not recite a brocha, if a gentile built the railing. Those who reject the Machaneh Efrayim’s approach would require that a Jew participate in the construction of the railing, in order to be able to recite the brocha. However, one major authority rules that Reb Gavriel should recite a brocha on the assembly of the railing, regardless of whether it was assembled by Jews or by gentiles, and even if he did not participate at all (Aruch Hashulchan, Choshen Mishpat 427:3).

When do I recite a brocha?

At this point, let us examine the third of our opening questions:

“If I am performing a mitzvah that will take a long time to fulfill, when do I recite the brocha?” This exact question can be asked regarding the assembly of a railing, and we noted before that Reb Gavriel, indeed, asked it.

Allow me to provide some background. In general, one recites a brocha immediately prior to beginning the performance of a mitzvah or immediately prior to eating a food. The Gemara (Pesachim 119b) calls this oveir la’asiyasan. According to this, one should assume that one would recite the brocha on the railing immediately before one performs the mitzvah. However, the question, here, is that the mitzvah takes a long time to perform. It can also happen that someone may encounter a difficulty in the middle of the job that makes it impossible for him to complete the mitzvah. Because of these concerns, when should one recite the brocha for performing the mitzvah?

This question is raised by the Chasam Sofer (Shu’t Chasam Sofer, Orach Chayim 52), who concludes that one should recite the brocha immediately prior to completing the maakeh. In his opinion, since the railing does not provide adequate protection until it is complete, the act of the mitzvah is the last hammer blow that makes it into an effective railing.

However, a much earlier authority than the Chasam Sofer holds differently. The Baal Ha’itur (Hilchos Tzitzis, Shaar 3, Cheilek 2, page 152) rules that one recites the brocha at the beginning of the assembly of the railing, even though its manufacture takes time. He compares this to the brocha of al bi’ur chometz, which we recite at the beginning of the search, knowing that it may involve interruptions and considerable time until the mitzvah is completed, which is when one has finished burning the chometz.

A third approach

I found yet a third approach to when one should recite the brocha on assembling a railing, because of an interesting reasoning. Some late authorities suggest that if the owner is unable to construct the railing himself, he should wait to recite the brocha until the railing is in place, out of concern that the employee may not complete the job, and the brocha that he recited for the mitzvah would be in vain (see Sedei Chemed).

In conclusion

What should Reb Gavriel do? I found some late authorities who suggest that he should try to assist the workers at a critical time in the manufacture of the railing, in which case, he could recite the brocha, because he took an active part in its assembly (Sedei Chemed, quoting Nediv Leiv). According to the Chasam Sofer, he should help out at the last stage of the construction of the railing, which is when the mitzvah is being properly fulfilled. According to the Baal Ha’itur, he should help out at the beginning of the construction of the railing, so as to recite the brocha before the mitzvah is begun.

Just as we must make sure that we build a guardrail in a way that it will properly prevent physical injury, so must we also examine the laws governing how and when we thank Hashem for the opportunity to observe his mitzvos. And just as we hire a professional to ascertain that our guardrail does its job well, so should we strive to recite our brochos and prayers with careful attention to detail, performing them in the way Hashem wants.

* I was asked this exact question. The name was changed to protect the individual’s privacy.

The Torah of Rav Yehosef Schwartz

Since this parsha, Re’eih, discusses the different species of kosher animals, a topic that will be included in this article, it provides an opportunity to learn about a very unique talmid chachom and tzadik, Rav Yehosef Schwartz.

The Torah of Rav Yehosef Schwartz

Question #1: Which minyan?

“In the minyan factory shtiebel that I often attend, it sometimes happens that most of my minyan has already heard the entire Chazoras Hashatz and answered Kedushah and Kaddish before we assemble to daven. Does this present us with any halachic questions?”

Question #2: Which chayah?

“A gnu is not listed in the Torah among the seven chayos, kosher wild animals, although it has split hooves and chews its cud. Why is it not listed?”

Question #3: Which borders?

“Where exactly are the borders of Eretz Yisroel?”

Question #4: Which question?

“What do the preceding three questions have to do with one another?”

Answer:

Rav Yehosef Schwartz, an outstanding talmid chochom and oveid Hashem, was also probably the greatest cartographer of Eretz Yisroel in history. We will study some background of this very unusual personality, and learn some of his Torah.

Rav Yehosef Schwartz was born in 1804 in a small Bavarian village where his antecedents had dwelled for many generations. A contemporary of Rav Samson Raphael Hirsch, he shared many of Rav Hirsch’s characteristics. Both men identified themselves as having a very specific, particular mission in serving Hashem, and pursued it despite living among people who neither shared nor necessarily understood their vision. Both maintained total humility, notwithstanding their considerable accomplishments, personal and communal. Both ended up becoming prolific and original authors on Torah subjects, in spite of the fact that neither had intended to do so early in life. Both married women whom they recognized would assist them in fulfilling their life’s goals, notwithstanding the difference in age between them. Both attended German universities with the specific goal of attaining knowledge they felt was necessary for them to fulfill their mission, yet neither one of them completed the requirements for the coveted doctoral degree. Both were involved extensively in providing chesed for their brethren, both journeyed widely to execute this goal, and both relocated to accomplish what they saw as their specific mission in fulfilling Hashem’s will. Both studied kabbalah, yet couched their knowledge in ways that their readers would not realize that they had drunk from those springs. Neither was always understood by the great halachic authorities of their generation, but both were highly respected gedolim, whose original contributions have withstood the test of time.

Early Life

Rav Yehosef Schwartz was born in Flos, a small Bavarian town, where, already as a youth, he distinguished himself for his hasmodah and sincerity. After studying in yeshiva, he attended the University of Wurzburg for several years, studying the subjects he felt he needed to augment his Torah knowledge: astronomy, mathematics, natural sciences and classical languages. He had already become an exceptional talmid chochom with extensive knowledge of Talmud Bavli and Yerushalmi, poskim, and midrashic literature. Rav Schwartz is known primarily for his encyclopedic and original work in mapping out Eretz Yisroel, but as we will soon see, this reflects only a small aspect of his greatness.

While quite young, he had already developed a profound love for Eretz Yisroel. At age 24, in 1829, while still living in Germany, he published his first map of the Holy Land. He revised this map twice before he left Europe for Eretz Yisroel.

Go East, My Son

When he was in his late 20’s, he had become convinced that his personal tikun was to move to Eretz Yisroel, no small endeavor at the time, which he proceeded to do despite strong family pressure. Because of various wars and other difficulties, the trip from Germany to Eretz Yisroel took him two years to complete. He finally arrived in Eretz Yisroel on the 13th of Nissan 5593 (1833).

He had originally planned to settle in Tzefas, presumably because of the kabbalistic orientation of the community, but upon arriving in Eretz Yisroel, he was invited to visit Yerushalayim. Once he arrived there, he decided to take up residence there, and he remained there for the rest of his life.

As was not uncommon among Ashkenazim who lived in Eretz Yisroel at this time, he adopted the local Sefardi dress and many of their customs, yet he maintained his very Ashkenazi family name. He never became a member of any of the various kehillos to the exclusion of the others, but considered himself part of all communities.

Upon after arriving in Eretz Yisroel, he taught himself two more languages, Ladino and Arabic, both of which would help him in his future research.

Personal Life

Shortly after moving to Yerushalayim, he married a twelve-year-old orphan. He was 29 years old at the time. They had eight children, four sons and four daughters; unfortunately six of their children perished during Rav Schwartz’s lifetime from the rampant diseases that plagued the country. Rav Schwartz merited taking only one daughter of his to the chupah; a younger daughter married the year after his passing. Although only two of his children survived him, a large number of his descendants are living today.

For the rest of his life, his livelihood was provided by his family, particularly by his older brother, Rav Chaim Schwartz, a rov in Europe who eventually even provided for Rav Yehosef’s widow after his passing. Rav Yehosef kept an active and lengthy correspondence with this brother, who often published the letters he received from Rav Yehosef in various periodicals in Europe. Rav Chaim Schwartz encouraged Rav Yehosef to write and publish his seforim, and arranged that many of Rav Yehosef’s works were translated into German and published in Europe, shortly after they were written.

Rav Yehosef, himself, was known as a great provider of tzedokah, notwithstanding that he and his family always lived in dire poverty and that he, personally, followed a very ascetic lifestyle. He fasted frequently and slept little. He and his wife were heavily involved in many chesed projects, including much hachnosas orchim and providing for widows and orphans.

His Mussar

Many of the observations shared by Rav Schwartz show us his perspective of “mah rabu ma’asechah Hashem.” For example, he notes the tremendous chesed that Hashem provides for us daily by having night very gradually turn to day, and having day so gradually darken to become night. If the day were to change suddenly, we would find the results blinding.

His Travels

Rav Schwartz devoted much of his life to traveling extensively throughout Eretz Yisroel, although we see from much of his correspondence that this travel involved a great deal of danger. We also know that, on at least one occasion, he traveled to England and the United States to attempt to raise funds for the yishuv in Yerushalayim.

His Research

Despite his fame for this area of research, it represents only a small part of Rav Schwartz’s published material. One of his areas of extensive study was to accurately determine the halachos of halachic daybreak, sunrise, sunset and nightfall, a topic to which he devoted an untold number of trips to check how long it took to get light and to get dark. He writes that both in Eretz Yisroel and in chutz la’aretz, he checked the physical features of sunrise over 4000 times in order to understand the topic well. He noted that calculating how much time it takes from dawn to sunrise and from sunset to nightfall depends on one’s location. He also demonstrates that one can prove, by observation, that the earth is round.

He was original in his approaches. In numerous places, he quotes great earlier halachic authorities such as the Ibn Ezra, the Radak, or the Gra, and then rallies proof to show why he feels that their interpretations of the halachic sources or their mathematical calculations were inaccurate.

His Published Works

For many years after Rav Schwartz arrived in Eretz Yisroel, he did not write or publish anything, despite his brother’s entreaties that he do so. Eventually, he produced numerous works, some published in Hebrew and printed in Eretz Yisroel, others printed in various European languages, mostly translated abridgments of his Hebrew works. Rav Hirsch quotes Rav Schwartz in his commentary to Devorim Chapter 11, Verse 29. Some of Rav Schwartz’s published material was used during his lifetime to produce educational materials for religious schools in Europe, particularly in Germany.

In his lifetime, Rav Schwartz published seforim on the following topics:

Tolodos Yosef, on astronomy and the halachos of zemanim. This work is full of charts and other demonstrative evidence.

Tevuos Ha’aretz, on the details of the land of Israel. This work places particular emphasis on its borders, and it is replete with many of his own original maps and drawings.

Ma’asei Ha’aretz, a history of the Jewish people in Eretz Yisroel from the time of the churbon to his time, in which he divided the history into various eras. He included highly detailed descriptions of the different rishonim who lived in Eretz Yisroel and the communities in which they lived. He includes all his sources.

He also wrote on linguistics, philology and phonemics, but always with a Torah perspective on how this research demonstrates the correctness of one halachic practice over another, or how we can thereby understand a passage of Gemara or Midrash.

In addition, he published a volume of his own responsa, called Rosh Hashoni, on a very eclectic list of topics. For example, he wrote a teshuvah discussing whether someone traveling through several dangerous areas, as was the situation in Eretz Yisroel in his day, bentches gomel only upon arriving at his final destination, or whether each day he should bentch gomel upon safely arriving for the night at a different community (#58). He explains why we find no dispute in Chazal regarding when the day begins, although we find much dispute when the day ends (#19). He asks if someone who says his prayers in a vernacular may say the name of Hashem in Hebrew while doing so (#35). In another teshuvah, he discusses whether the Rambam changed his mind about the fact that Judaism has 13 ikorei emunah (#57). The basis of this question is that although the Rambam devotes much discussion to this topic in his commentary on the Mishnah, which he wrote in his youth, he makes no mention of this basic topic in the Mishneh Torah.

Some of Rav Schwartz’s responsa answer contemporary questions. For example, he was asked the following shailah about a shul that has several daily Shacharis minyanim: The people who daven at the later minyan have already arrived in shul while the earlier minyan is still davening and thus, they have already answered Borchu, and answered Kedushah. Do they still have a minyan to daven the regular Shacharis? Is it considered that they have already fulfilled the requirement of tefillah betzibur by listening to Chazaras Hashatz and therefore cannot repeat Shemoneh Esrei for that davening (#55)?

Mussaf Before Shacharis?

Here is another, even more contemporary, question that Rav Schwartz addresses. Someone arrives late for shul on Shabbos, and the tzibur is ready to daven Mussaf. Should he recite Mussaf together with the tzibur, so that he has the merit of tefillah betzibur, and then daven Shacharis, or should he daven in the proper order, Shacharis and then Mussaf (#30)? He concludes that someone in this scenario should join the minyan for Mussaf and then daven Shacharis.

Several of the questions he talks about are discussed extensively by other authorities of his time. For example, he discusses the situation of a gentile in the process of conversion who has undergone bris milah, but did not yet have the opportunity to immerse in a mikvah to complete his geirus. Is he still required to break Shabbos?

An interesting question Rav Schwartz discusses that I have found in no other responsa work is as follows: There are two people; one is a perfect tzadik, whereas the other was born with very bad traits and is striving to improve. Which of the two will be rewarded in greater measure by Hashem? (#34)

When Rav Schwartz passed on, he left behind, in addition to his published works, extensive notes, notebooks, and even several works ready for publication.

The Four Questions

At this point, we can now address our opening four questions:

Question #1: Which Minyan?

“In the minyan factory shtiebel that I often attend, it sometimes happens that most of my minyan has already heard the entire Chazoras Hashatz and answered Kedushah and Kaddish before we assemble to daven. Does this present us with any halachic questions?”

Question #2: Which Chayah?

“A gnu is not listed in the Torah among the seven chayos, kosher wild animals, yet it has split hooves and chews its cud. Why is it not listed?”

Question #3: Which Borders?

“Where exactly are the borders of Eretz Yisroel?”

Question #4: Which Question?

“What do the preceding three questions have to do with one another?”

As I am sure you surmised, the first three questions are discussed in Rav Schwartz’s writings. He devotes one of his responsa (#55) to the first question. Apparently, already in his day Yerushalayim had a shtiebel in which minyanim took place in different parts of a large beis medrash. Frequently, a group of people would have heard the entire repetition of Shemoneh Esrei before a section of the beis medrash was available for them to conduct their minyan. Can one still conduct Chazoras Hashatz, when every member of the assembled group has already heard a repetition of Shemoneh Esrei, albeit without having yet davened themselves? Rav Schwartz concludes that if the minyan assembled does not have six people who did not yet hear the repetition of Shemoneh Esrei, they cannot have a Chazoras Hashatz for their minyan. If you are faced with the same question, I suggest consulting your rav or poseik.

What’s Gnu?

The gnu, also known as a wildebeest, is a variety of antelope native to Africa. Since the gnu both chews its cud (ruminates) and possesses split hooves, seeming to be a kosher animal, Rav Schwartz was asked as follows: The Torah lists only ten varieties of kosher animals: three beheimos and seven chayos. Which one is the gnu?

Rav Schwartz answers that the gnu is the yachmur. He writes that he has correctly identified the nine other kosher animal species mentioned by the Torah, and writes which species they are. The only one left unidentified is the yachmor, which, by process of elimination, must be the gnu.

(Personally, I would suggest a different approach to answering this question, since there are, according to my information, 91 species of antelope known to mankind, all of which ruminate and have split hooves. One is probably forced to say that some of the terms of the Torah include far more than what we would consider to be one species.)

Responsa from Early Nineteenth-Century America

Rav Schwartz wrote several teshuvos based on questions he was asked during his trip to England and the United States. One question was whether a citrus fruit native to the West Indies qualified as an esrog. He first writes that there was no question that this fruit had never been grafted onto another species, since such fruits grow in the wild in an area where the local native population has no interest or knowledge about grafting, nor do they have related species on which to graft it. The remaining question was whether this fruit, which looked very different from any esrog he had ever seen, qualified as an esrog. He ruled that it did qualify, and reports that he used it to fulfill the mitzvah during his stay in North America.

The End

Based on our contemporary understanding of the report of Rav Schwartz’s physician, he contracted scarlet fever, which developed into meningitis and took his life when he was 61 years old. Thus ended the life of an intense oveid Hashem, who devoted himself to becoming a master of areas of Torah that had been completely untrodden before him. Yehi zichro boruch.

 

 

Is This Considered a Mixture?

Since this week’s parsha, Eikev, includes the sources for the laws of brochos, it is certainly appropriate to discuss:

Is This Considered a Mixture?

Some Details of the Halachos of Ikar and Tafeil

Question #1: What bracha do I recite on a fruit salad?

Question #2: What is the difference between a mixture and an enhancer?

Question #3: Why should I sometimes recite the brachos of ha’adamah or shehakol before I recite the brocha of ha’eitz?

Answer:

In a different article, Important Eating, I noted that there are two general categories of ikar and tafeil; (1) enhancers and (2) mixtures.

(1) Enhancers: This category includes food items where the tafeil food makes the ikar food tastier. Some common examples include: eating cereal with fruit and milk or latkes with apple sauce; stirring herbal tea with a cinnamon stick; breading fish or meat (schnitzel). In all of these cases, one recites the bracha for the ikar; that is, the cereal, latkes, tea, or meat; and the tafeil is included.

(2) Mixtures: This category includes cases where one food is not specifically enhancing the other, but both foods are important. Examples of this type of ikar and tafeil: macaroni and cheese, blintzes (they always contain a filling), cholent, kugel, stew, soups. These mixtures are considered one complete food item and therefore have only one bracha. Thus, the concept of ikar and tafeil is very different here – it is the rule used to determine which bracha we recite on this food.

WHAT IS A MIXTURE?

Does a “meat and potatoes” roast require one bracha on both ingredients, or is it two items that require separate brachos?

Is the bracha on a mix of raisins and peanuts ha’eitz or ha’adamah?

Is a fruit salad containing melon or pineapple in addition to pears, apples, and peaches a mixture that requires one bracha or separate brachos?

When dealing with the correct bracha on a food mixture, one of the key questions one must ask is whether the food is indeed a mixture that requires one bracha or if it is considered two (or more) separate foods each of which requires a separate bracha.

Here is an obvious example: Suppose you dine on a chicken dinner with side dishes of noodle kugel and string beans. Although you are eating them all at the same time, these foods are not a mixture. Therefore, each item requires its own bracha.

FRUIT SALAD

Do the ingredients of a fruit salad that contains both ha’eitz and ha’adamah items require two separate brachos, or is the salad a mixture requiring one bracha? Whereas in a soup, peanut bar, or tzimmes, the foods were cooked or blended together and are difficult to isolate from one another, in most fruit salads the different fruits can be clearly distinguished and separated from one another. On the other hand, because the pieces are small, one usually eats the different varieties together.

The poskim dispute whether fruit salad warrants one bracha or two. According to most poskim, one should recite only one bracha over a mixture of this type. Following their opinion, one would recite a bracha on the majority item in a fruit salad. However, the Chayei Odom contends that when the items can be clearly distinguished from one another, they are not to be considered a mixture, and one should recite separate brachos on the components of the dish. Thus, in his opinion, one should recite a ha’eitz on the tree fruits and then ha’adamah on the melon in the fruit salad.

(I noted in other articles, entitled “Topical, Tropical Fruits”; “A Sweet Change of Pace”; and “Papaya, that although we recite ha’adamah on bananas, pineapples, and strawberries, and shehakol before eating chocolate, there are poskim who contend that one should recite ha’eitz on these fruits because they are perennial; that is, the root remains from one year to the next. Because the poskim dispute whether the correct bracha on these types of perennial fruits is ha’eitz or ha’adamah, we recite ha’adamah [and, in the case of chocolate, shehakol] to resolve the doubt. In all of these instances, we recite the more general bracha, because one who recites a ha’adamah when he was to have recited ha’eitz fulfills his obligation, since trees grow from the ground. Shehakol is the most general of all brochos on food, and fulfills the requirement bedei’evid whenever it is recited on any food.

However, since we recite this bracha only to resolve a safek, there are several ramifications of this ruling, one of which directly affects our case. If one will be eating both these fruits [bananas, pineapples, and strawberries] and definite ha’eitz fruits, one should recite the ha’adamah first and taste them before one recites ha’eitz. This is because, according to the opinion that the correct bracha on any perennial is ha’eitz, if one recited a ha’eitz on the tree fruits, reciting a different bracha afterwards on the banana, pineapple, or strawberry is a bracha levatalah, a bracha in vain. Although we do not rule according to this opinion, we should not ignore it.

Similarly, if you are going to recite shehakol on the chocolate, you should recite this bracha first and taste the chocolate before eating the tree fruits. This is because there are halachic authorities who rule that the brocha on chocolate is ha’eitz, as I explained in the above-referenced article, A Sweet Change of Pace.)

The same dispute about making one or two brachos on a mixture exists regarding a mix of raisins and peanuts; most poskim contend that one should recite the bracha of the majority item, and the Chayei Odom rules that they require two separate brachos.

The Mishnah Berurah (212:1) concludes that safek brachos lehakeil: when in doubt, we do not recite a bracha, and therefore, one should recite one bracha on both items. The bracha should follow whatever bracha one would recite on the majority of the mixture, even if it consists of different fruits (Mekor Haberacha pg. 182). If one cannot determine whether the majority is borei pri ha’eitz or borei pri ha’adamah, then one should recite borei pri ha’adamah, since when one recites pri ha’adamah on an item that is pri ha’eitz, one fulfills the requirement, but not vice versa.

Following the majority opinion that a person recites one bracha on the mixed fruit salad or the peanuts and raisins, we still need to clarify a very important issue. At what point do we consider the two items to be different foods requiring separate brachos? In the case mentioned above of a chicken dinner with side dishes of noodle kugel and string beans, it is obvious that they are different items. But is a roast of meat and potatoes or a shepherd’s pie (usually consisting of alternating layers of ground meat and potatoes) considered one item, or does it require two separate brachos?

The poskim rule as follows: When the two items are eaten together in one spoonful, he recites one bracha, even if there is an occasional spoonful where he is eating only one of them. However, if each spoonful usually contains one item exclusively, the two items should have separate brachos. Thus, meat and potatoes cooked together would have two separate brachos, since the meat and potatoes are usually not eaten together in the same forkful. However, shepherd’s pie or soup would require only one bracha, since each forkful or spoonful will probably contain parts of at least two different foods. In this case, he recites one bracha, even if an occasional forkful/spoonful has only one of the ingredients (Aruch Hashulchan 212:2).

WHAT ABOUT CHOLENT?

A cholent consisting of barley, kishka, meat, potatoes and beans contains some items whose bracha is mezonos (the barley and kishka) and others whose bracha is shehakol (the meat) or ha’adamah (potatoes and beans). Is cholent a mixture like a soup requiring only one bracha, or can it be compared to eating a meat and potatoes roast, where several brachos are recited on the components? Truthfully, it depends on the consistency of the cholent. If the cholent that includes barley or kishka is made in such a way that each forkful contains a mix of the various ingredients, its bracha is mezonos. However, if the potatoes or meat are large, discernable chunks, they will require their own brachos (Pri Megadim, Pesicha Kolleles, Hilchos Brachos s.v. klal amru; Vezos Haberacha pg. 110).

Conclusion

Not everything we do in life qualifies as our ikar purpose in life; often we must do things that are tafeil to more important things. However, paying attention to the halachos of ikar and tafeil should encourage us to focus on our priorities in life, and not allow the tafeil things we must do become more important than they really are.

 

Mezuzah Basics

The “Ten Commandments” of Mezuzah

The laws governing where one places a mezuzah are, indeed, complicated. The Rambam (Hilchos Mezuzah 6:1) codifies ten necessary requirements that must be fulfilled for a house or room to be obligated to have a mezuzah.

  1. The room must have a minimum area of four amos by four amos (which is about fifty square feet). In the Rambam’s opinion, it is not necessary that each side be at least four amos wide – if the room or building’s area is at least sixteen square amos, one must place a mezuzah on its entrance. Thus, according to the Rambam’s opinion, a room that is three amos wide and six amos long requires a mezuzah.

However, the Rosh and others disagree, contending that a room three amos wide and six amos long does not require a mezuzah, since it does not have four amos in each dimension. In other words, they contend that a normal living area must be at least four amos in both its length and its width.

Although the authorities accept the Rambam’s position as the primary halachic opinion, and therefore one is required to place a mezuzah at the doorway to a room that is sixteen square amos, even if it is narrower than four amos (Shulchan Aruch, Yoreh Deah 286:13), we do not recite a beracha when placing only this mezuzah. Instead, should there be another doorway that is definitely required to have a mezuzah, one should recite a beracha prior to placing this mezuzah, following which he can put up a mezuzah on the door of the room that is narrower than four amos (Shach). (This is the general rule that is applied for any case when there is a safek whether one must install a mezuzah. One does not recite a beracha, but it is optimal to place this mezuzah immediately after putting up a different mezuzah that requires a beracha, thereby including the safek situation with the beracha.)

Let us now return to the Rambam’s Ten Mezuzah Rules – that is, the ten necessary conditions that require a house or room to have a mezuzah.

  1. The entrance must have sideposts on both sides. I will soon explain what this means.
  2. The entrance must have a mashkof, that is, something that comes down vertically, similar to the way a lintel functions as the top of a doorway.
  3. The room or house must be roofed. An enclosed yard or porch without a roof does not require a mezuzah, although sometimes the doorway to an unroofed yard or porch functions as an entrance to the house and requires a mezuzah for this reason. However, a doorway of an unroofed room or building that is not an entranceway to a house does not need a mezuzah.
  4. In the Rambam’s opinion, a mezuzah is required only when the house or room’s entrance has a door. In this instance, the Rambam’s position is a minority opinion, since most other Rishonim contend that the lack of a door does not absolve the requirement of a mezuzah. The accepted conclusion is to install a mezuzah in a doorway that has no door, but not to recite a beracha when doing so (Shulchan Aruch, Yoreh Deah 286:15). (Again, the best option here is to place this mezuzah  immediately after putting up a mezuzah in a place that all opinions require one, with the beracha recited on the latter mezuzah.)
  5. The sideposts of the entrance are at least ten tefachim tall, which is between 32 and 38 inches.
  6. The house or room does not have the sanctity of a shul or beis medrash. In the Rambam’s opinion, a beis medrash does not require a mezuzah. Most authorities rule that one should place a mezuzah on a beis medrash, and, therefore, accepted practice is to place a mezuzah on any beis medrash, but without a beracha. Common practice today is to treat a shul as a beis medrash and, therefore, to place a mezuzah on its door without a beracha.
  7. The house or room is intended for human habitation. For example, stables and barns are absolved of the requirement of mezuzah.
  8. The house or room is meant for an honorable use, as opposed to a bathroom or similar rooms, where we do not install a mezuzah.
  9. The room or house is intended for permanent use. For this reason, we do not install a mezuzah on a sukkah.

The next section is an edited version of an actual correspondence that I was asked via e-mail.

Bs”d

Dear Rav Kaganoff,

I have a sad financial/gezel sheilah for the Rav.

My former employers owe me several hundred pounds.  In legal documents, through their lawyer, they have acknowledged that they owe me the money.  They have also made it clear that they are not going to pay it.  The only way to get the money, at this point, would be if I went to secular court, since it is quite clear, based on their track record, that they would not obey a ruling of a beis din.  My wife and I have decided that we cannot afford this. It would cost us more than we would probably win.

However, when we moved, the moving company accidentally packed mezuzos which belong to the former employer.  These mezuzos are now sitting in my lift boxes waiting to be unpacked when we move into our new apartment in two weeks. 

Prior to accepting this job, the employer had instructed me to purchase mezuzos that I would need for the house that we were renting. He reimbursed us for them two months later. 

The money the employer owes me is predominantly from unpaid reimbursements. Frequently, there were expenditures that I made out-of-pocket for which they were supposed to reimburse me. Each month when they reimbursed me, they never paid the full amount.  They always shortchanged me — 20 pounds here, 10 pounds there. At the end of my employment, they owed me several hundred pounds of out-of-pocket expenses. And, more recently, they stopped paying the reimbursements altogether.

Am I allowed to keep the mezuzos, since I was the one who originally bought them? 

Thanks very much

xx

 

My answer:

The fact that you had purchased the mezuzos is not relevant. What is germane is the issue of “tefisah” – a creditor (or other person owed money) taking something belonging to the debtor (or person who owes money) on account of the debt.

In this case, if the value of the mezuzos is certainly less that the amount you are owed, it is permitted to keep them.

Best wishes.

Sources:

The question of “grabbing” (taking hold of) property for purpose of reclaiming bad debt is discussed extensively by authorities.

Permission to do so, in appropriate circumstances, is found in a number of authorities (see Choshen Mishpat 4; Sema 4:3; see also Gra 4:15). In the case of your question, because you are already in possession of the mezuzos, the case is more lenient, and you can certainly rely on the permitting poskim.

A condition for this is that you can prove your case in Beis Din. From the question, I understand that this is the case – the documents you have prove the employer’s debt, and this will be admissible in Beis Din – so that it is permitted to keep the mezuzos on account of the debt.

It is indeed ironic, or perhaps not at all so, that this a mezuzah is to remind us that Hashem protects us, and that this question came from someone whose employer forgot that Who is in charge!

Mezuzah Rewards

Aside from fulfilling a mitzvah commanded by Hashem, the mitzvah of mezuzah serves to remind us constantly of His presence. We touch the mezuzah whenever we enter or exit a building to remind ourselves of Hashem’s constant presence, so that the mezuzah serves as a physical and spiritual protective shield. Whenever passing it, we should remind ourselves of Hashem’s constant protection. In addition, the Gemara teaches that someone who is meticulous in his observance of the laws of mezuzah will merit acquiring a nice home (Shabbos 23b). We thus see that care in observing this mitzvah not only protects one’s family against any calamity, but also rewards one with a beautiful domicile. May we all be zocheh to always be careful in our observance of the laws of mezuzah and the other mitzvos, and reap all the rewards, both material and spiritual, for doing so!

 

 


The Halachos of Pidyon Haben

This week’s parsha includes the mitzvah of pidyon haben, redeeming the bechor, the firstborn, if it is a boy. The mitzvah is performed optimally when the baby turns a month old, by giving a kohein five sela’im of silver, equal to about 96 grams of silver (Chazon Ish).

The dollar value of the five sela’im varies, depending on the market price of silver. Some people have the custom of giving the kohein six coins, in case one of the coins is defective and does not contain enough silver. The truth is that one has to research how much silver content there is in the coins. Old US silver dollars did have enough silver, but most coins today have little metallic value. We will talk more about this shortly.

WHO IS REQUIRED TO REDEEM THE BECHOR?

The obligation rests on the father of a boy who is the firstborn of his mother and was born through natural delivery. If the father is a kohein or a levi, or if the mother is the daughter of a kohein or a levi, there is no mitzvah of pidyon haben. Usually, the question of whether one’s mother is a bas kohein or levi does not affect a person’s halachic status; however, since pidyon haben is dependent on the boy being the firstborn of his mother, her yichus is taken into consideration (Bechoros 47a).

There is an interesting phenomenon that relates to the difference between the daughter of a kohein and the daughter of a levi. If a boy is born of a non-Jewish father and a bas kohein, there is a requirement for this child, upon becoming an adult, to perform a pidyon haben. Why is this true? Because his mother was together with a non-Jew, she loses her sanctity as a bas kohein – for example, she will never again be able to eat terumah. Therefore, her son is included in the mitzvah of pidyon haben. However, neither parent is obligated to perform the mitzvah for the child; the father, because he is not Jewish, and the mother, because there is no requirement for Mom to perform pidyon haben. Therefore, upon becoming an adult, this child should perform the mitzvah himself.

The halacha is different regarding a boy who is born of a non-Jewish father and a bas levi. Although Mom was involved in a prohibited relationship, this did not affect her yichus, since she loses no halachic rights as a result. Therefore, in this situation the child is exempt from the mitzvah of pidyon haben.

Incidentally, there are poskim who rule that the grandson of a non-Jewish father and a bas levi is also excluded from pidyon haben. This means that the son of a non-Jewish father and a bas levi does not have a mitzvah to redeem his son. Since this man is Jewish from birth but does not have a Jewish father, his yichus follows his mother, who is the daughter of a levi. Since the bas levi’s son’s only Jewish yichus is as a descendant of Levi, these authorities contend that he has no obligation to perform pidyon haben. (See Shu’t Maharam Shick, Yoreh De’ah #299 who disagrees with this ruling.) My impression is that the accepted practice in this situation is to perform an act of pidyon haben without a brocha; after which the kohein returns the money.

WHAT HAPPENS IF A KOHEIN MARRIED A DIVORCEE?

If a kohein married a divorcee or any other woman prohibited to a kohein, the children of this union are challalim, which means that they have become defiled and therefore lose their status as kohanim. The daughters may not marry kohanim, and the firstborn son born to a kohein from this woman needs to be redeemed, just like any yisroel. Furthermore, his son’s son will also require pidyon haben, like any other yisroel.

WHAT IS THE HALACHA OF A BECHOR BORN THROUGH CAESARIAN SECTION?

Switching sub-topics, only a naturally-born child has the status of a bechor for pidyon haben purposes. There is no mitzvah of pidyon haben if the boy was delivered through caesarian section. His younger brother is also not considered firstborn, even if he is born through natural delivery. Similarly, a boy born after a miscarriage is not a bechor for purposes of the mitzvah of pidyon haben (Bechoros 46a). This last halacha depends on how far advanced the terminated pregnancy was, a topic that we will leave for a different time.

WHAT HAPPENS IF NO ONE REDEEMS THE BECHOR?

If the father cannot or does not redeem the bechor, other people can redeem him, but are not required to do so. However, if no one redeemed the bechor as a child, he is required to redeem himself when he reaches adulthood (Kiddushin 29a).

Many men who are not from an observant background did not have a pidyon haben. At a pidyon haben that I once performed (I am a kohein), the grandfather of the newly redeemed baby came over to me, saying, “You know, I am also firstborn and a baal teshuvah. I can’t imagine anyone made a pidyon haben for me.” And so, two pidyonim were performed on the same day, one for the grandson and one for the grandfather!

WHAT IS THE PROCEDURE?

As opposed to other mitzvos, such as bris milah and a wedding, where the mitzvah is performed first and then the festive meal is eaten, pidyon haben is performed during the meal, in order to call attention to the mitzvah. (In some Yerushalmi circles, they actually perform the pidyon first, and then begin the seudah.)

The usual procedure is as follows: After the assembled have made hamotzi and taken their seats, the father brings the bechor to the kohein, who is seated at a place of honor. The custom is to bring the bechor on a large, silver platter. Many have the custom of placing sugar cubes, cloves of garlic, and jewelry on the platter. The father declares to the kohein that the baby is firstborn and must be redeemed.

The kohein then responds with the famous and enigmatic question: “Mai ba’is tefei?” Which do you prefer? Would you rather have your child or the five sela’im of pidyon?

The father responds that he would prefer his son, and that he is prepared to perform the redemption. He then recites the bracha on the mitzvah and the bracha of shehechiyanu, and places the coins into the kohein’s right hand. The kohein waves the coins over the head of the bechor while blessing him. Then, the kohein recites the birchas kohanim and other words of blessing over the head of the bechor. The procedure is completed by the kohein reciting a bracha on a cup of wine and drinking it.

WHAT DOES IT MEAN WHEN THE KOHEIN SAYS “MAI BA’IS TEFEI?” — DOES THE FATHER REALLY HAVE A CHOICE?

The wording of the kohein’s question, “Which do you prefer?” — implying that the father has a choice — i­­s extremely strange. Halachically, there is no choice or option. The father has a mitzvah to fulfill, which he is required to observe. So, why does the kohein suggest to the father that he has a choice?

The text of our pidyon haben ceremony goes back 1,000 years, and, since that time, probably tens of thousands of interpretations have been suggested for this question. Think of your own answer to this question, and you’ll have something to share with others the next time you attend a pidyon haben!

WHY DO SOME PEOPLE PLACE GARLIC CLOVES AND SUGAR CUBES ON THE PLATTER THAT HOLDS THE BABY?

There are many customs that have developed around the mitzvah of pidyon haben. Some people place pieces of garlic, sugar cubes, or candies alongside the bechor when he is brought in for the pidyon. The sugar cubes show that the mitzvos are sweet, and garlic is a symbol of and segulah for fertility. Some say that when participants take home the sugar and the garlic and use them for cooking their own meals at home, they increase the numbers of people who “participated” in the pidyon haben meal, all of whom will be blessed by this.

WHEN IS THE PIDYON PERFORMED? WHY IS THE MINHAG TO PERFORM PIDYON HABEN IN THE AFTERNOON?

The Torah says that the mitzvah is to redeem the bechor when he turns a month old.

How does one determine that a child is a month old? Although we are accustomed to thinking of a Jewish month as being either 29 or 30 days long, these are actually calendar calculations that deal only with complete days. Technically, a month is the amount of time it takes the moon to revolve around the earth, which varies slightly from month to month, but is always a bit more than 29½ days.

HOW LONG IS A MONTH?

There is a dispute in halacha as to how one determines that a bechor is a month old. One opinion follows the day-count method and rules that the pidyon haben should take place on the 31st day after the boy was born, counting his day of birth as day one (Magen Avraham 339:8).

Others rule that a month for pidyon haben is determined by the astronomical method, meaning the same amount of time that transpires from one new moon to the next. Since the time that transpires from one new moon to the next is estimated at 29 days, 12 hours and 793/1080 of an hour (usually called 793 chalakim), the time for pidyon haben begins when the bechor is exactly 29 days, 12 hours and 793 chalakim old (Shach, Yoreh De’ah 305:12). Common practice is to perform a pidyon haben after both opinions have been fulfilled.

By the morning of the 31st day, the bechor is usually 29 days, 12 hours and 793 chalakim old. However, if the bechor was born shortly before sunset on a long summer day, daybreak on the morning of the 31st day is less than 29 days, 12 hours and 793 chalakim since his birth. In this situation, one should wait to perform the pidyon until he is 29 days, 12 hours and 793 chalakim after birth (Pischei Tshuvah 305:17). For this reason, it is a common custom to schedule a pidyon haben on the afternoon of the 31st day, which is always an appropriate time according to both opinions.

When the earliest time to perform the pidyon is on an erev Shabbos or erev Yom Tov, the pidyon should be scheduled in the morning (Mishnah Berurah 249:13). In the rare case that it is not yet 29 days, 12 hours and 793 chalakim after birth, one should calculate when the 29 days, 12 hours and 793 chalakim after birth falls out and schedule the pidyon then.

When the 31st falls on Shabbos or Yom Tov, the pidyon should be scheduled for Motza’ei Shabbos or Motza’ei Yom Tov (Shu’t Noda Biyehuda Tenina, Yoreh De’ah #187).

WHAT DOES ONE DO IF THE THIRTY-FIRST DAY FALLS ON A FAST DAY?

There are two practices mentioned by the poskim. One approach is to perform the pidyon during the fast day, so as not to delay the opportunity to observe the mitzvah, and conduct the festive meal at night after the fast is over. The other approach is to delay the pidyon until the night after the fast, and then perform the pidyon during the meal (Shach, Yoreh De’ah 305:12).

CAN ONE PERFORM THE MITZVAH OF PIDYON HABEN BY GIVING THE KOHEIN A BOND?

One does not fulfill the mitzvah of pidyon haben if one gives the kohein a bond (Shulchan Aruch, Yoreh Deah 305: 3,4). The yisroel must give the kohein something that has inherent value, such as merchandise. A check is an order of payment instructing the bank to release funds, but itself has no inherent value. Therefore, a check is not equal to cash and is not valid for pidyon haben.

It should be noted that according to many prominent poskim, paper money should not be used for pidyon haben because they also do not have inherent value (see Shu”t Chasam Sofer; Aruch Hashulchan, Yoreh De’ah 305:18; Shu”t Oneg Yom Tov, Yoreh De’ah #102). Since our coins today are not valued by their metal content, it would seem that they should also not be used for pidyon haben.

Usually the pidyon haben is performed with silver coins. These coins are supplied either by the father or by the kohein, in which case he sells them to the father before the pidyon. It is halachically acceptable for the father to pay for the coins by check when he buys them from the kohein.

I was once given by the father small pieces of silver. He had purchased the exact amount of silver necessary, probably from a jeweler, for pidyon haben and that is what he gave me. Although I have had this happen only once, I am told that in certain communities this is a common method.

On another occasion, I was asked, in advance, if I would afterwards sell back to the family the silver dollars that they were giving me. It turned out that the coins used had been used by the great-great-grandfather of the baby when he performed pidyon haben on his son, and these exact coins had been used for every generation in between!

CAN ONE FULFILL THE MITZVAH BY BUYING THE KOHEIN A PRESENT?

Yes, as long as the present is worth at least the value of five sela’im (96 grams of silver). However, the prevalent custom is to give the kohein silver coins, as mentioned above.

MAY THE KOHEIN RETURN THE MONEY TO THE FATHER OF THE BECHOR?

The kohein may return the money. However, this should not be his regular practice, since it might cause a loss of revenue to other kohanim, because yisraelim may stop using them for pidyon haben (Shulchan Aruch Yoreh De’ah 305:8). There are some poskim who contend that today the money should be returned, since the kohein cannot prove that he is a kohein (Shu”t Yaavetz #155). However, the accepted practice is that the kohein does not return the money (Pischei Tshuvah 305:12, quoting Chasam Sofer).

ONCE THE FATHER ASKED A KOHEIN TO BE THE KOHEIN AT HIS SON’S PIDYON HABEN, MAY HE SUBSEQUENTLY CHANGE HIS MIND AND USE A DIFFERENT KOHEIN?

Once the father has asked one kohein to “officiate” at the pidyon haben, he should not ask another kohein. However, if he gave the redemption money to a different kohein, the pidyon is valid (Rema, Yoreh De’ah 305:4).

MAY THE FATHER OF THE BECHOR DIVIDE THE MONEY FOR PIDYON HABEN BETWEEN TWO OR MORE KOHANIM?

It is preferable not to do this, but if he did so, the pidyon is valid (Pischei Tshuvah 305:10, quoting Chasam Sofer).

A RATIONALE FOR THE MITZVAH

It behooves us to consider the reason for the mitzvah of pidyon haben. Following the smiting of the firstborn in Egypt, all firstborn boys had a certain kedusha, which should have entitled them to a role of service in the Beis Hamikdash.

However, because the bechorim were involved in worshipping the Eigel Hazahav, the Golden Calf, they lost their unique status and could no longer perform any special role in the Beis Hamikdash. Therefore, the bechor must undergo a redemption ceremony to make amends — which is to pay the kohein as a means of “redeeming” his former kedusha.

 

 

Which Utensils Must I Immerse?

Question #1: With Cookie Cutter Precision!

Rivkah Baker asks:

“Do I need to toivel the cookie cutter that I just purchased?”

Question #2: Butch’s Cleaver

Butch Katzav, the proprietor of the local glatt kosher meat market, inquires: “Under my previous hechsher, I was told that I did not need to toivel my meat cleavers, since they are used only for raw meat. However, my new rav hamachshir requires me to toivel them. Why is there a difference?”

Introduction:

In Parshas Matos, the Torah teaches: Regarding the gold and the silver; the copper, the iron, the tin and the lead: any item that was used in fire needs to be placed in fire to become kosher, yet it must also be purified in mikveh water. In addition, that which was not used in fire must pass through water” (Bamidbar 31:22-23). From these verses, we derive the mitzvah of tevilas keilim — the mitzvah to immerse metal implements in a kosher mikveh or spring prior to using them for food. The Gemara (Avodah Zarah 75b) notes that this immersion is required, even if the vessel has never been used. In other words, this mitzvah is unrelated to the requirement of koshering equipment that was used for non-kosher food, or to the laws related to purifying implements that became tamei.

The Gemara (Avodah Zarah 75b) further states that in addition to metal items intended for food use, we are also required to immerse glass dishes, because both metal and glass share a similarity – they are repairable by melting and reconstructing, what we call today recyclable. This renders them different from vessels made of stone, bone, wood or earthenware, all of which cannot be repaired this way.

Immediately prior to immersing something that definitely requires tevilah, one recites a beracha: Asher kideshanu bemitzvosav vetzivanu al tevilas keilim. One does not recite this beracha when it is uncertain that immersion is required, such as, when the authorities dispute whether tevilah is necessary. When there is no mitzvah to immerse a utensil, reciting a beracha is prohibited, becauses it constitutes a beracha levatalah, one stated in vain. Therefore, when we are uncertain whether an item requires tevilah, we immerse it — but without reciting a beracha. A better solution is to immerse something that definitely requires a beracha at the same time that one immerses the “questionable” item, and to recite a beracha on the “definite” item/utensil. We will soon see an example.

Is this a kashrus law?

The Gemara cites a highly instructive dialogue about the mitzvah of immersing new vessels:

“Rav Nachman said in the name of Rabbah bar Avuha: ‘From the verse, one can derive that one must immerse even brand new items, because used vessels that were purged in fire are as kosher as those that are brand-new, and yet they require immersion.’

Rav Sheishes then asked him: ‘If it is true that the mitzvah of immersing vessels is not because of kashrus concerns, then maybe one is required to immerse even clothing shears?’

Rav Nachman responded: ‘The Torah mentions only vessels that are used for meals (klei seudah)'” (Avodah Zarah 75b).

Rav Sheishes suggested that if the immersion of utensils is not a means of koshering a non-kosher vessel, then perhaps we have many more opportunities to fulfill this mitzvah, and it applies to any type of paraphernalia — even cameras, cellphones and clothing shears!

To this, Rav Nachman retorted that the Torah includes only items used for klei seudah – as Rashi explains, household implements used with fire are normally pots, pans and other cooking implements. Thus, the mitzvah of tevilas keilim applies only to utensils used for preparing food, and not those intended for other purposes.

Klei Seudah – appliances used for meals

We should note that Rav Nachman did not say that all food preparation utensils require immersion, but he required immersion only of klei seudah, items used for meals. We will soon see how this detail affects many of the halachos of tevilas keilim.

What exactly are considered klei seudah, and how is this different from simply saying that all food implements must be immersed?

Early halachic authorities provide some direction about this issue. For example, the Mordechai (Chullin #577, quoted by Beis Yosef, Yoreh Deah 120) rules that a shechitah knife does not require immersion. Why not? After all, it is used to prepare food.

The answer is that since meat cannot be eaten immediately after shechitah, this knife does not qualify as klei seudah. Only utensils that prepare food to the point that they can be eaten are called klei seudah. This is the approach that the Shulchan Aruch follows (Yoreh Deah 120:5).

Making a point!

According to this approach, cleavers used for raw meat, tenderizers (mallets used to pound raw meat), and reidels, the implements used to perforate matzoh dough prior to baking, would all not require tevilah, since the meat or dough is not edible when these implements complete their task (Darkei Moshe, 120:4, quoting Issur VaHeter).

However, not all authorities reach this conclusion. Indeed, the same Darkei Moshe, who ruled that reidels do not require tevilah, quoted that both the Rash and the Tashbeitz, two prominent early authorities, toiveled shechitah knives before using them. Why did these poskim toivel their shechitah knives? Did they contend that any implement used to process food at any stage requires tevilah? If so, would they also require immersing reidels, meat grinders and rolling pins?

We find a dispute among halachic authorities how to explain this opinion. According to the Taz (120:7) and the Gra (120:14), the Rash and the Tashbeitz indeed require immersing appliances whose finished product is not yet edible. In their opinion, the Rash and the Tashbeitz require the toiveling of reidels and presumably, also, meat grinders. Since the matter is disputed – the Mordechai contending that these items do not require tevilah, and the Rash and the Tashbeitz requiring tevilah — the Taz and the Gra rule that we should follow a compromise position, immersing shechitah knife and reidels before use, but without reciting a beracha, because maybe there is no requirement to immerse them, and the beracha will be in vain.

What is the difference between a reidel and a knife?

On the other hand, the Shach (120:11) disputes the way the Taz and the Gra understand the opinion of the Rash and the Tashbeitz. The Shach contends that although the Rash and the Tashbeitz rule that one must toivel a shechitah knife, they would not require the immersion of a reidel before use. A shechitah knife must be toiveled because it can potentially be used for food that is ready to be eaten. The Shach concludes that an implement that can be used only for items that are not yet edible does not require immersion, and therefore a reidel does not require tevilah.

Cookie cutting precision!

Most of our readers probably do not regularly use shechitah knives or reidels, but may have more experience with cookie cutters. If a cookie cutter is used only for dough, then according to the conclusion of the Mordechai and the Shulchan Aruch, it would not require tevilah. However, my wife informs me that cookie cutters are often used to form shapes in melons or jello; therefore, they must be immersed.

There are other items where this question is germane, such as items that would be used only for kneading, e.g., a metal rolling pin; or for items used for processing raw meat, e.g., a meat grinder, or a schnitzel mallet. Must one immerse these items?

The answer is that it is dependent on the above-quoted dispute between the Gra and the Shach. According to the Gra, those early authorities who require the toiveling of a shechitah knife require that all food implements be toiveled. Since we usually require toiveling shechitah knives, we must also toivel reidels, meat grinders, and rolling pins, although we would toivel all of these items without a beracha (see Pri Megadim, Orach Chayim 451:6).

However, according to the Shach, there is a big difference between a shechitah knife, which can be used to cut ready-to-eat foods, and a reidel, which can be used only for food that is not ready to eat. Since reidels are never used for ready-to-eat food, they do not require tevilah.

Major improvements

There is yet a third approach to this issue. Some other authorities contend that an item used for a major tikun, or change, in the food, such as shechitah, requires tevilah, even if the food is not edible when this step is complete. However, an item that performs only a minor tikun, such as the reidel, does not require immersion, if the food is not yet edible (Pri Chodosh and Aruch Hashulchan). In their opinion, the potential use of the shechitah knife is not what requires the tevilah. It is the fact that the shechitah performed with this knife is a major stage in making the finished product, the meat, edible. Those who follow this approach would rule that one need not toivel a meat grinder, whereas the Gra and the Taz would rule that one should.

The saga of Butch’s cleaver

We can now address Butch Katzav’s question:

“Under my previous hechsher, I was told that I did not need to toivel my meat cleavers, since they are used only for raw meat. However, my new rav hamachshir requires me to toivel them. Why is there a difference?”

In true Jewish style, let us answer Butch’s question with a question. Is a cleaver like a shechitah knife or like a reidel?

In certain ways, a cleaver is like a knife, in that it can be used both for raw meat and for cooked, ready-to-eat food. On the other hand, it is unlike a shechitah knife which performs a major tikun by making the meat kosher, and in this way, the cleaver is more similar to a reidel which performs a relatively minor function.

Now we can answer Butch’s question. The previous hechsher may have ruled like the Pri Chodosh and the Aruch Hashulchan that an item used for a minor change does not require tevilah, unless it is used with edible food. The current rav hamachshir may follow the opinion of the Shach that an item, such as a knife or cleaver, requires tevilah when used for food that is not yet edible, since it could be used for ready-to-eat food. It is also possible that the current rav follows the opinion of the Gra and the Taz that any food implement requires tevilah without a beracha, and would require that even a reidel be immersed.

Conclusion

According to Rav Hirsch, metal vessels, which require mining, extracting and processing, represent man’s mastery over the earth and its materials, whereas vessels made of earthenware or wood only involve man’s shaping the world’s materials to fit his needs. The manufacture of metal utensils demonstrates man’s creative abilities to utilize natural mineral resources to fashion matter into a usable form. Consuming food, on the other hand, serves man’s most basic physical nature. Use of metal food vessels, then, represents the intellectual aspect of man serving his physical self, which, in a sense, is the opposite of why we were created — to use our physical self to assist our intellect to do Hashem’s will. Specifically in this instance, the Torah requires that the items thereby produced be immersed in a mikveh, to endow them with increased kedusha before they are put to food use. This demonstrates that although one may use one’s intellect for physical purposes, when doing so, one must first sanctify the item to focus on the spiritual.

 

 

Prayer by Non-Angels

Question #1: Ahavah Rabbah

Brocha Rishonah asks me: “In the middle of reciting the brocha of Ahavah Rabbah, I feel a mild need to use the bathroom. Must I stop davening immediately, or can I delay using the bathroom and finish davening first?”

Question #2: The Baal Keriyah

“I am a baal keri’ah (often mispronounced as baal korei). It occasionally happens that while I am leining, I realize that I need to use the facilities. May I continue leining until I have finished reading?”

Question #3: Cantorial Quandary

Mr. Fine Cantor calls me. “I just found out that one may not pray when one has a minor urinary urge, which for me is quite common. I often have such a need prior to repeating the chazaras hashatz. It is rather embarrassing for me to leave the shul prior to beginning the repetition. What do I do?”

Introduction

Since Tehillim (106:30) emphasizes that Pinchas was rewarded in the merit of his prayer, we have an ideal opportunity to discuss this aspect of the laws of davening.

In the fourth chapter of Hilchos Tefillah, the Rambam lists and explains five essential prerequisites of prayer. This means that one may not be permitted to daven if he is unable to fulfill these requirements. The five requirements are:

  1. One’s hands must be clean.
  2. One’s body must be covered.
  3. The place where one is praying must be clean.
  4. One may not be distracted by bodily needs.
  5. One must have proper kavanah when praying, meaning that there is a requirement that one’s thoughts be focused.

This article will be devoted to factor number 4, that one must not be distracted by bodily needs. This means that it is prohibited to daven when feeling an urge to relieve oneself. Chazal derive this requirement from several biblical sources. One verse reads hikon likras Elokecha, Yisroel, “Prepare yourself, Israel, when you approach your G-d” (Amos 4:12). Of course, that verse does not specify what type of preparation is necessary. According to the midrash, another verse, Shemor raglecha ka’asher teileich el beis HaElokim, “Pay attention to your legs when you walk into the House of G-d” (Koheles 4:17), serves as an allusion to this specific type of preparation.

The Gemara background

The passage of Gemara that provides the background to this discussion reads as follows: “One who needs to relieve himself may not pray, and if he did pray, it is an abomination” (Brochos 23a). The fact that the Gemara calls this prayer an “abomination” teaches that one who prayed when he needed to relieve himself is required to pray again (Kesef Mishneh, Hilchos Tefillah 4:10; see also Shulchan Aruch, Orach Chayim 92:1). In this situation, the brochos of the tefillah are considered brochos levatalah, brochos recited in vain (Biur Halachah 92:1, s.v. Hayah).

In general, when one needs to relieve himself, it is prohibited to wait unnecessarily. We will continue the discussion on this point shortly.

When is the prayer invalid?

The Gemara explains that a prayer recited when one senses an urge to relieve oneself is not always invalid. This depends on how strong the need was to relieve oneself at the time that he prayed. The Gemara rules that if he could have waited for a parsah, then he has fulfilled his obligation to pray. However, if he davened knowing that he would not be able to wait this long, the davening is invalid and must be repeated, since it is considered an abomination.

How long is a parsah?

A parsah is a distance of 8000 amos, approximately 2½ to 3 miles, and the Gemara means the amount of time it takes to walk a parsah. The authorities dispute how much time this is, some ruling that it is an hour (Bach, Orach Chayim 92), whereas most authorities consider it longer. Some opinions consider it as long as 96 minutes. The consensus of the late authorities is that if one would not have been able to wait for 72 minutes, the prayer is invalid (Aruch Hashulchan 92:2; Mishnah Berurah 92:3).

Milder needs

What is the halachah if someone feels a mild urge to use the facilities – meaning that he knows that he could wait more than 72 minutes? Is he permitted to pray?

We find a dispute among the rishonim whether, under these circumstances, one is permitted to pray, the Rif and Rashi contending that one may, whereas most authorities rule that it is still not appropriate to daven without first relieving oneself (Rambam, Rosh, Rabbeinu Yonah, Tur and Shulchan Aruch). This dispute appears to depend on two variant texts of the passage of Gemara involved. (However, we should note that the Aruch Hashulchan proposes a completely different way to understand this topic, and he concludes that all rishonim prohibit davening when one feels any urge.)

The Rambam codifies this requirement as follows:

“One who needs to relieve himself may not pray. Furthermore, one who needs to relieve himself and prays, the prayer is an abomination, and upon relieving himself, he must pray again. However, if he could hold himself the amount of time it takes to walk a parsah, his tefillah is acceptable, after the fact. In any instance, one should not daven without first checking oneself very carefully. He should also remove any mucous and phlegm and anything else that distracts him, and only then pray” (Rambam, Hilchos Tefillah 4:10).

Type of need

There is a dispute among the authorities whether the requirement to daven again is only when one needed to defecate, or also when one needed to urinate. The Magen Avraham, the Chayei Odom and the Aruch Hashulchan are lenient, ruling that even if the need was intense, one is not required to repeat the davening if one needed only to urinate, whereas the Elyah Rabbah and the Derech Hachayim require one to daven again. When the Mishnah Berurah records this dispute (Mishnah Berurah 92:2), he writes that he is unable to render a decision as to which position is correct, since both sides have early sources that follow their opinion (Biur Halachah, 92:1, s.v. Vetzarich).

Should he miss tefillah betzibur?

What is the halachah if someone has a minor urge to use the facilities, and he will certainly be able to wait longer than a parsah: may he postpone relieving himself in order to be able to daven together with a minyan?

The conclusion is that even though the prayer would be valid after the fact, he should not pray until he has had a chance to relieve himself.

Should he miss praying altogether?

Let us assume that the latest time to daven is approaching, and, if our individual relieves himself, he may miss davening altogether. Is he permitted to daven, even though he feels a mild urge to relieve himself, or does the requirement to use the facilities before davening require that he miss davening?

There is a dispute among the early acharonim as to what one should do. According to the Bach, he may not daven when he needs to use the facilities, even when this means that he will miss davening as a result.

However, according to the Magen Avraham, this depends on how severe the need is to use the facilities. If it is strong enough that he feels that he will not be able to wait until a parsah, he cannot pray. However, if the need is not that great, the Magen Avraham rules that one can rely on the Rif that one may daven. The Mishnah Berurah concludes in accordance with the Magen Avraham.

Make-up

Under the circumstances in which he was not permitted to daven, he would be required to make up the prayer, called tefillas tashlumim. This means that immediately after davening the next shemoneh esrei, after taking three steps backward at the end of the prayer, he waits for a few seconds, then steps forward and recites the shemoneh esrei again, as a makeup for the missed prayer.

What parts of prayer?

Until now, the rules that we have been describing apply to the shemoneh esrei. How do these rules apply regarding the other parts of prayer and regarding other brochos or learning Torah?

The laws regarding all these other Torah and tefillah activities are as follows: If one is in the middle of reciting brochos or tefillos other than shemoneh esrei and he has an urge, but he knows that he can wait a parsah, he may continue and complete the section of davening in which he is holding and then relieve himself (Shu”t Harashba, Volume 1, #131; Mishnah Berurah 92:9). However, he should not continue the next section of davening without first relieving himself. Therefore, if this happens during pesukei dezimra, he may continue until the end of yishtabach and then relieve himself. However, he is required to relieve himself before he answers borchu, since this begins the next section of davening (Shoneh Halachos). If this happens during the brochos surrounding the Shma, he could continue davening before he relieves himself, but he cannot start shemoneh esrei without first relieving himself. However, in this instance, he should not wait until he completes the brocha of ga’al yisroel, since ga’al yisroel should be recited immediately before beginning shemoneh esrei (this is called semichas geulah litefilah). Instead, he should relieve himself beforehand, so that he can complete the brocha of ga’al yisroel and begin shemoneh esrei immediately (Mishnah Berurah 92:9).

In this last instance, he should not recite the brocha Asher Yatzar until completing the shemoneh esrei. Whether one can recite the brocha of Asher Yatzar in the middle of pesukei dezimra or not is a dispute among the late authorities, which we will leave for a different time.

What is considered a new topic?

All of hallel, all of the megillah or all of bensching are each considered one unit. Therefore, someone who was in the middle of any one of them and began to feel an urge may complete them first. However, the haftarah is considered a new unit after keriyas hatorah (Biur Halachah 92:2, s.v. Korei). Therefore, someone who felt an urge during keriyas hatorah may wait until it is complete, but should attend to his need prior to the beginning of the haftarah.

In all of these instances, if the urge is great enough that he could not wait a parsah, he should not recite any brochos or tefillos. However, according to most authorites, someone who recited a brocha or a tefillah when he could not wait a parsah does not need to repeat them, although it was prohibited for him to recite them (Milchemes Hashem, on Rif Brochos page 16a; Pri Megadim, Introduction to Mishbetzos Zahav, Orach Chayim, Chapter 92; Mishnah Berurah 92:7; Biur Halachah 92:1, s.v. Afilu; however, the Lechem Yehudah, cited by Biur Halachah ad locum, rules that one did not fulfill the requirement and needs to recite the prayer or brocha again.)

Ahavah Rabbah

At this point, we can address the first of our opening questions, from Brocha Rishonah: “In the middle of reciting the brocha of Ahavah Rabbah, I feel a mild need to use the bathroom. Must I stop davening immediately, or can I delay using the bathroom and finish davening first?”

Based on the information that we now have, we can analyze the details and provide Brocha with an answer.

Brocha may not begin shemoneh esrei until she uses the facilities. However, since this is only a minor need and also because her question is germane to the brochos surrounding Shma, she is permitted to continue davening and to complete Shma and its brochos before she does so. However, if she completes the prayer up to Boruch Atta Hashem Ga’al Yisroel, she will create a problem, in that she will not be able to recite shemoneh esrei immediately after completing that brocha. Therefore, she should take care of matters sometime between where she is now in davening and before she recites the words Tzur Yisroel. She should not recite Asher Yatzar until after she completes shemoneh esrei.

If she felt this need during pesukei dezimra, she should relieve herself some time before she begins reciting the brochos of Shma, meaning the brocha that begins with the words Boruch Ata Hashem Elokeinu Melech ha’olam yotzeir or uvorei choshech. If she is in shul, she should take care of it before she answers borchu.

Are there any differences between men and women regarding these halachos?

No , there are no differences between men and women.

Learning and teaching Torah

If one has a great urge to relieve oneself, not only is it forbidden to pray, but it is also forbidden to learn Torah (Rema, Orach Chayim 92:1).

Public teaching

Someone who is in the middle of teaching a class or giving a public lecture who feels a need to relieve himself may finish the class he is teaching before doing so (Mishnah Berurah 92:7). Similarly, the baal keri’ah who feels such a need in the middle of the reading may complete it before relieving himself (Biur Halachah 92:1, s.v. Hayah). The reason is because we have a general halachic principle that kavod haberiyos, human dignity, supersedes a rabbinic prohibition, and the prohibition of teaching Torah when he needs to relieve himself is only miderabbanan (Magen Avraham 92:3).

The Baal Keri’ah

At this point, we can answer one of our opening questions: “I am a baal keri’ah. It occasionally happens that while I am leining, I realize that I need to use the facilities. May I continue leining until I have finished reading?”

The answer is that, based on the above, he may.

What about a Chazzan?

The later authorities are lenient, ruling that if the chazzan completed his personal shemoneh esrei and has a minor need to use the facilities, he may repeat the shemoneh esrei without first using them. The reason for this lenience is that the requirement to use the facilities is rabbinic, and the concept of kavod habriyos supersedes it (Brochos 19b). An additional reason that one may be lenient in this instance is because of the opinion of the Rif, mentioned above, that one who can wait for a parsah may daven lechatchilah. Although we do not usually follow the Rif’s minority opinion, under extenuating circumstances, one can rely upon it (Biur Halachah 92:1 s.v. Hayah).

Cantorial quandary

Back to our third question:

Mr. Fine Cantor calls me. “I just found out that one may not pray when one has a minor urinary urge, which for me is quite common. I often have such a need prior to repeating the chazaras hashatz. It is rather embarrassing for me to leave the shul prior to beginning the repetition. What do I do?”

Since Mr. Cantor is embarrassed to exit to use the facilities during the time that he is leading the davening, he may delay doing so until he finishes the davening. However, this is true only if his need is mild enough that he feels he can wait 72 minutes. If he feels that he cannot wait this long, he has no choice but to use the facilities, since, otherwise, he will not fulfill the mitzvah of davening, and his brochos will be in vain.

Caught in the middle

What is the law if someone is in the middle of the shemoneh esrei and he feels an urge to relieve himself? Should he interrupt the prayer to do so?

The halachah is that he should try to wait until he completes the tefillah and not interrupt the shemoneh esrei (Shu”t Harashba Volume 1, #131; Shulchan Aruch, Orach Chayim 92:2). However, he should not answer kedushah if his need is great, since this constitutes a new section of davening (Shoneh Halachos).

If his need to relieve himself is very great, he should go, even though he is in the middle of davening. When one needs to relieve himself, it is prohibited to wait unnecessarily. This prohibition is referred to as bal teshaketzu.

Must he repeat?

If someone needed to relieve himself in the middle of the shemoneh esrei, when he returns, does he continue the tefillah from where he was, or does he start it over again from the beginning?

Whether or not he returns to the beginning depends on the following:

Should his delay have been long enough that he could have recited the entire shemoneh esrei, then he is required to begin again from the beginning of the shemoneh esrei. If his delay was shorter, then he returns to the point where he interrupted his prayer.

In either instance, one should not talk during this interruption, and one should not recite Asher Yatzar until after he finishes the shemoneh esrei.

Men or women?

Are there any differences between men and women regarding these halachos?

No. Although I have been using male gender for this entire article, there are no differences between men and women.

Conclusion

The Rambam (Hilchos Yesodei Hatorah 2:3) explains that angels are made of a different type of matter than we are. They have no physical body, and Hashem made them in such a way that they have spiritual aspects and no true material appearance. This is why they can, at times, assume different forms. It is also a factor in their having no physical needs, and why they do not have free choice. Man was created by Hashem as the only creation that has free choice. Therefore, our serving Hashem and our davening is unique in the entire spectrum of creation.

Understanding how much concern Chazal placed in the seemingly minor aspects of davening should make us more aware of the fact that davening is our attempt at building a relationship with Hashem. As the Kuzari notes, every day should have three very high points — the three times that we daven. We should gain our strength and inspiration for the rest of the day from these three prayers.